Harry Gordon v. United States

451 F.2d 1354

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 1971
• Docket: 25303
• Status: Published

Opinion

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. Gran-quist, 9 Cir., 1956, 237 F.2d 390; Royce v. Squire, 9 Cir., 1948, 168 F.2d 250.

Affirmed.