Volume 62 — Federal Supplement

The present suit is bottomed on several causes of action. An action is alleged under §§ 1 and 2 of the Sherman Act1 and §§ 4 and 16 of the Clayton Act;2 another action is alleged under the Declaratory Judgment Act.3 The controversy centers about a suit for unfair competition brought by Cornell-Dubilier against Sprague in the Massachusetts state court. Each of the parties here moves against the other for summary judgment.

2. March 9, 1940, plaintiff filed a claim for refund of $7,945.59 paid for 1936, on the grounds (1) that the sum of $7 '69.01, reported as interest on special assessment bonds issued by various municipalities, was not taxable, and (2) that the sum of $12,033.24, received as a result of the redemption of 120% shares of Class B preferred stock by Puro Filter Corporation of Illinois, hereinafter called the Puro corporation, was not taxable.

<p>1936 .......................... $1,949.86</p> <p>1937 .......................... 1,541.95</p> <p>1938 .......................... 2,083.38</p> <p>$5,575.19</p> <p>These deficiencies were protested by plaintiff and on or about July 1, 1940, a hearing was had before the Oklahoma Tax Commission, which resulted in a decision by the Commission holding that the deficiencies in tax were due to the State of Oklahoma and, on or about August 24, 1940, plaintiff paid to the State the deficiencies with interest thereon, and at the same time, gave notice as required by statute of its intention to sue for their recovery. Pursuant to the laws of the State of Oklahoma, the tax paid was held in a separate fund by the State of Oklahoma, pending the outcome of the suit.</p> <p>On or about September 19, 1940, a suit for recovery of the taxes was instituted in the United States District Court for the Western District of Oklahoma, the case being styled Chestnut Securities Company, a corporation, Plaintiff v. Oklahoma Tax Commission, Defendant, and assigned Number 571 Civil. A trial was had and judgment was entered for the defendant Commission in the year 1940, from which plaintiff, in March 1941, took an appeal to the United States Circuit Court of Appeals for the 10th Circuit. On or about January 16, 1942, the Circuit Court of Appeals affirmed the judgment of the District court, the opinion being reported in 125 F.2d 571. The Supreme Court of the United States denied certiorari on April 13, 1942, 316 U. S. 668, 62 S.Ct. 1035, 86 L.Ed. 1744. The basis for the decision by the Circuit Court was that the intangible personal property which was almost identical with that involved in the first case above mentioned, decided by the Supreme Court of Oklahoma, had a “business situs” within the State of Oklahoma for the purpose of income taxation.</p> <p>5. No part of the sum of $1,013.33 claimed for refund by plaintiff from the defendant, as shown in finding 4, has been refunded or repaid to the plaintiff.</p>

Special Findings of Fact Filing of Refund Claim 1. Plaintiff, now a resident of New York, was in 1934 a resident of Maryland 'but had his office in the District of Columbia. He filed his individual income tax return for the calendar year 1934 on March 15, 1935, and paid the tax of $884.88 shown therein in four equal installments of $221.-22 on March 15, June 15, September 20, and December 17, 1935. This was not a joint return of plaintiff and his wife.