AROUND THE WORLD SHOPPERS CLUB, APPELLANT,
v.
UNITED STATES OF AMERICA
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The court held that the sales took place within the United States, making the appellant subject to federal excise taxes.
Appellant made sales to its members, and the parties stipulated to the facts. The district court concluded the sales occurred in the U.S. based on tit…
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PER CURIAM.
The issue dispositive of this appeal is whether certain sales made by the appellant to its members took place within the United States. The parties agree that if this is so, appellant is subject to the Retailers Excise Taxes imposed by the Internal Revenue Code of 1954, §§ 400Í-4058, 26 U.S.C.A. §§ 4001-4058.
Based on a stipulation of facts, the district court concluded that the sales occurred in this country. Of course, since this conclusion constitutes an ultimate finding of fact, it is subject to review free of the restraint of the “clearly erroneous” rule applicable to ordinary findings of fact. Philber Equipment Corp. v. Commissioner, 237 F. 2d 129 (C.A.3, 1956). However, as this court held in Pennroad Corp. v. Commissioner, 3 Cir., 261 F. 2d 325, 328, certiorari denied sub nom. Madison Fund, Inc. v. Commissioner, 359 U.S. 958, 79 S.Ct. 797, 3 L.Ed.2d 766 (1959): “ * * * where the ultimate fact reasonably flows from the basic facts and especially where the basic facts are persuasive of the ultimate fact so found, this court will not disturb the finding of the trial court.” Accord, Simon v. Commissioner, 285 F. 2d 422 (C.A.3, 1960); Heebner v. Commissioner, 280 F. 2d 228 (C.A.3), certiorari denied, 364 U.S. 921, 81 S.Ct. 285, 5 L.Ed.2d 260 (1960).
Here, the district court’s ultimate conclusion was premised on a subsidiary determination that the parties intended title to pass upon delivery to the purchaser in this country. In view of the stipulation we cannot say that this finding was clearly erroneous. Hence, the ultimate finding was a permissible one and clearly meets the criteria set forth in Pennroad.
The judgment of the district court will be affirmed.
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Philber Equip. Corp. v. Commissioner OF Internal Revenue, 237 F.2d 129 (3d Cir. 1956)
- Mitchell v. Or. Frozen Foods Co., 359 U.S. 958 (U.S. 1959)
- The Pennroad Corp. & Affiliated Cos. v. Commissioner OF Internal Revenue, 261 F.2d 325 (3d Cir. 1958)
- Heebner et ux. v. Commissioner of Internal Revenue, 364 U.S. 921 (U.S. 1960)
- Joseph B. and Josephine L. Simon v. Commissioner OF Internal Revenue, 285 F.2d 422 (3d Cir. 1960)
- Heebner v. Commissioner OF Internal Revenue, 280 F.2d 228 (3d Cir. 1960)