Pressed Steel Tank Co. v. Commissioner

Hill,

dissenting: I assume, for this discussion, that the petitioner by virtue of contract is obligated to pay into the Treasury the amount of its net profit, if any, in excess of 10 percent of the contract price for the manufacturing operation herein involved. It is only in the event such contract obligation was required by section 3 of the Vinson Act that respondent is authorized to enforce it “under the usual methods employed under the internal revenue laws to collect Federal income taxes.” We are not here concerned with the enforcement of an obligation other than one created'under the requirements of the Vinson Act.

Section 3 of that act is or is not applicable herein solely by virtue of its own provisions. If the facts in a given case do not make the provisions of the act applicable, application thereof can not be invoked by contract. Specifically, if the facts in the instant proceeding are not covered by the Vinson Act, the contract involved herein did not invest the respondent with authority to collect the amount claimed to be due “under the methods employed under the internal revenue *63laws to collect Federal income taxes.” That authority can be conferred only by a statute.

The determinative question is whether the shells here involved constituted a portion of a complete naval vessel. If so the Yinson Act is applicable; otherwise it is not. The fact that funds for the initial supply of ammunition for newly constructed naval vessels are provided by Congressional appropriations under the heading “Increase of the Navy” does not constitute such ammunition a “portion” of a “complete” naval vessel. It is or is not such a portion regardless of the language of the appropriations act providing funds for its purchase.

It is my view that a supply of ammunition is not necessary in order that there be a complete naval vessel, and that the contract obligation herein sought to be enforced is not one required by the provisions of the Yinson Act. If a naval vessel is incomplete within the purview of the Vinson Act until it is provided with the initial supply of ammunition, it would also be incomplete upon the exhaustion of such initial or a subsequent supply of ammunition. Consistently with such interpretation, every recurring subsequent supply of ammunition for a naval vessel would be a “portion” of the complete vessel and its procurement would have to be made in compliance with the Yinson Act. It appears to be conceded that renewals of ammunition supplies for naval vessels are made from the general stock of ammunition in the Naval establishment and that the ammunition in such general stock is not required to be procured or supplied under the provisions of the Vinson Act. It is readily conceivable that the initial supply of ammunition for a newly constructed naval vessel might be drawn from such general stock instead of being procured directly from a manufacturer or distributor specifically for such vessel. In such event the Yinson Act would concededly have no application thereto. Yet if such initial supply of ammunition received from a manufacturer or vendor for the specific purpose of equipping a certain newly constructed naval vessel is a “portion” of the complete naval vessel, then the initial supply of such ammunition for such vessel taken from the general stock of the Navy Department would also be a “portion” of a complete naval vessel. However, it appears that in the former-case the Navy Department and the appropriations committees of Congress regard the expense of such ammunition as cost and in the latter case as maintenance of the naval vessel. It is not apparent to me why in the illustration given the expense of supplying such ammunition should be cost in the one instance and maintenance in the other or why the initial supply of ammunition for a naval vessel should represent cost thereof and that subsequent or renewal supplies of such ammunition should represent maintenance. It is my opinion that a complete naval vessel within the purview of the Yinson Act does not *64include either the initial or a subsequent supply of ammunition such as is involved in this proceeding or at all and that, therefore, there is no warrant in law for the remedy here pursued for the collection of the amount due, if any, under the alleged contract obligation herein involved. In other words, the obligation, if any, of petitioner is not enforceable “under the usual methods employed under the internal revenue laws to collect Federal income taxes.”