485 F2d 1237 Allied Bitumens Inc v. United States

485 F.2d 1237

73-2 USTC P 16,120

ALLIED BITUMENS, INC., Plaintiff-Appellee.
UNITED STATES of America, Defendant-Appellant.

No. 223, Docket 73-1813.

United States Court of Appeals,
Second Circuit.

Argued Oct. 25, 1973.
Decided Nov. 2, 1973.

Louis A. Bradbury, Atty., Tax Div., Dept. of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Elmer J. Kelsey, Attys., John T. Elfvin, U. S. Atty., for the Western District of New York, on the brief), for defendant-appellant.

Thomas J. Fori, Albany, N. Y. (Harry R. Hayes, Albany, N. Y., on the brief), for plaintiff-appellee.

Before SMITH, FEINBERG and OAKES, Circuit Judges.


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The United States appeals from a judgment of $13,192.89 with interest for plaintiff taxpayer Allied Bitumens, Inc. after a trial in a tax refund suit in the United States District Court for the Western District of New York, before Judge John T. Curtin. The judge held that the asphalt distributors and slurry machines used by taxpayer in road construction and repair were not "highway motor vehicles" within 26 U.S.C. Sec. 4482(a) so as to be subject to the tax imposed by section 4481(a). We affirm substantially for the reasons set forth in Judge Curtin's opinion, 353 F.Supp. 1128 (W.D.N.Y.1973). Although the judge did not discuss the effect of the last sentence of the pertinent Treasury Regulation,1 relied on heavily by the United States in this appeal, that sentence does not suggest a contrary result.


Judgment affirmed.


26 C.F.R. 41.4482(a)-1