SUPER FOOD SERVICES, INC., PLAINTIFF-APPELLANT,

v.

UNITED STATES OF AMERICA, DEFENDANT-APPELLEE

PER CURIAM.

This matter arises on plaintiff’s bill of costs, its supporting memorandum, and defendant’s opposing memorandum. On July 28, 1969, this Court rendered its judgment reversing and remanding this cause.

Public Law 89-507, 80 Stat. 308 (July 18, 1966), amended Section 2412 of the Judicial Code (28 U.S.C. § 2412) to provide that costs might usually be recovered against the United States in civil actions. Section 3 of the Amendatory Act provides:

“These amendments shall apply only to judgments entered in actions filed subsequent to the [July 18, 1966] date of enactment of this Act.”

Although 28 U.S.C. § 2412 refers only to “actions,” it has been understood to apply to costs on appeal when such costs are otherwise authorized by law. See, e. g., Coyle Lines, Inc. v. United States, 198 F. 2d 195 (5th Cir. 1952). The Federal Rules of Appellate Procedure, Rule 39(b), incorporate by reference the provision of 28 U.S.C. § 2412 for purposes of determining when costs shall be taxable against the Government. Thus when the language of Section 2412 is sought to be interpreted as it applies to costs on appeal, the reference to “actions filed” should be read to mean appeals filed after July 18, 1966. Therefore plaintiff-appellant is entitled to recover from the United States the costs of printing its briefs and appendix on appeal.

. See Note, “Amortization of Intangibles: An Examination of the Tax Treatment of Purchased Goodwill,” 81 Harv.L.Rev. 859, note 7 (1968).

. Having established an average useful life for the franchise contracts, and after eliminating 23 contracts which had been in force less than 12 months and whose useful lives were therefore considered unreliable, the taxpayer then placed a value on each of the remaining 184 contracts by allocating the total value represented by these contracts to each con tract in proportion to the revenue produced. The Government attacks the total value ascribed to the contracts and the allocation of the purchase price between the wholesale franchise contract with IGA, the various retail franchise contracts and the goodwill of Johnson. These disputed questions of fact can only be resolved at trial on the merits.

. Under that theory, the percentage of failure of items to which it is applied is a constant (see 350 F. 2d at pp. 582-583).

. Taxpayer did not waive its right to trial by its cross-motion for summary judgment. 6 Moore’s Federal Practice ¶ 56.13 (2d ed. 1966) p. 2255.