(dissenting).
The statute requires that the claim for refund establish two things as conditions precedent to the credit or refund,: (1) That the person who paid the tax has not included the tax in. the price of the article, and (2) that he has not collected the amount of the tax from the vendee. The claim for refund complies with both requirements. It states that the sales from the Standard Oil Company to its subsidiaries were before the tax became effective, and that no tax was paid by the vendor or vendee. The logical and reasonable construction of such a statement is that the “tax” was not included in the price of the article to the vendee. There was no tax in existence at that time. The claim also contains the sworn statement that the vendor has not collected the amount of the tax from the vendee. Those facts stood undisputed before the Commissioner. The Commissioner investigated the claim on its merits. I agree with the ruling of the District Judge, as discussed in 63 Fed.S. 48, that the subsidiaries are to be considered separate legal entities and in these purchases were engaging in bona fide legal transactions at arm’s length. What the purchasers did later after the tax became effective is immaterial. I believe it necessarily follows that the claim for refund was sufficient and valid.
I am of the opinion that the judgment of the District Court should be affirmed.