Harry Gordon, Plaintiff-appellant, v. United States of America, Defendant-appellee, 451 F.2d 1354 (9th Cir. 1971)

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US Court of Appeals for the Ninth Circuit - 451 F.2d 1354 (9th Cir. 1971) Dec. 3, 1971

Bruce I. Hochman (argued), Harvey D. Tack, of Hochman, Salkin & De Roy, Los Angeles, Cal., for plaintiff-appellant.

Carleton D. Powell (argued), Meyer Rothwacks, Tax Division, Johnnie Walters, Asst. Atty. Gen., Tax Division, Washington, D. C., Bart M. Schouweiller, U. S. Atty., Las Vegas, Nev., for defendant-appellee.

Before DUNIWAY and TRASK, Circuit Judges, and GOODWIN, District Judge* .

DUNIWAY, Circuit Judge:

Plaintiff, owner of a race book enterprise in Las Vegas, Nevada, brought this action under 28 U.S.C. § 1346(a) (1) to obtain a refund of federal wagering excise taxes paid under 26 U.S.C. § 4401. He appeals from an adverse judgment; we affirm.

Plaintiff's enterprise, licensed by the State of Nevada, took bets on horse races and sporting events. It collected from each bettor an additional 10% of his bet. It called this amount a "service charge," but plaintiff testified that the 10% would be "The tax." The trial court found that plaintiff collected 10% from bettors and applied it to payment of the tax, and that neither consents were filed by the bettors nor were tax refunds made or received by the bettors. This brings the case squarely within 26 U.S.C. § 6419, which prohibits a refund under such circumstances. The finding is supported by the evidence. Therefore, plaintiff cannot recover. Cf. United States v. Spokane Rodeo, 9 Cir., 1958, 254 F.2d 377; Gray Line Co. v. Granquist, 9 Cir., 1956, 237 F.2d 390; Royce v. Squire, 9 Cir., 1948, 168 F.2d 250.



Honorable Alfred T. Goodwin, United States District Judge, District of Oregon, sitting by designation