353 F2d 89 Allen Revivals Inc v. Campbell

353 F.2d 89

A. A. ALLEN REVIVALS, INC., Appellant,
Ellis CAMPBELL, Jr., District Director of Internal Revenue, Appellee.

No. 22036.

United States Court of Appeals Fifth Circuit.

November 26, 1965.

Robert Edwin Davis, Wentworth T. Durant, and Ronald M. Mankoff, Dallas, Tex., for appellant.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Washington, D. C., Barefoot Sanders, U. S. Atty., Dallas, Tex., Meyer Rothwacks, George F. Lynch, Mark S. Rothman, Attys. Dept. of Justice, Washington, D. C., Melvin M. Diggs, U. S. Atty., Martha Joe Stroud, Asst. U. S. Atty., of counsel, for appellee.

Before JONES, Senior Judge,* and GEWIN and BELL, Circuit Judges.


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The appellant, A. A. Allen Revivals, Inc., complains of the order of the United States District Court for the Northern District of Texas dismissing its complaint to recover certain funds paid as Federal Insurance Contributions Act taxes for the fourth quarter of 1959. In the order of dismissal, the District Court found that the Government had tendered to the appellant the full amount of the taxes sought to be recovered, plus interest, and that it continues its readiness and willingness to make the refund. On oral argument in this Court, Government counsel made the same assurances as to the readiness and willingness of the Government to make the refund.


The complaint seeking the refund was filed on February 28, 1963. The prayer of the complaint sought judgment against the District Director of Internal Revenue for a specific sum of money plus interest. The amount sought is the amount which the Government has tendered to the appellant. Moreover, on October 11, 1963, the Tax Court held that appellant was organized and operated exclusively for religious and educational purposes and therefore there were no deficiencies in income taxes for the taxable years ended May 31, 1958 and May 31, 1959. The dismissal order of the District Court is dated September 24, 1964.1


The appellant contends that the District Court erred in failing to grant its motion for summary judgment because its complaint presented a justiciable controversy even if there was a valid tender of the amount claimed; and that the alleged tender was not a sufficient and valid tender as a matter of law.


We reject the contentions of the appellant and agree with the action taken by the District Court.


The judgment is affirmed.



Of the Court of Claims, sitting by designation


From oral argument and briefs it appears to be uncontroverted that since the instant case was dismissed, Internal Revenue Service has ruled that appellant is exempt from federal income and employment taxes. Letter announcing this ruling is from Chief Exempt Organizations Branch, and is dated October 8, 1964. The record shows that the order of dismissal was filed on October 9, 1964. Efficient counsel for appellant has furnished the court with a certified copy of the docket sheet showing that the order was filed on September 24, 1964