Westco Liquor, Products Co. v. United States

CONCURRING IN PART

EKWall, Judge:

I agree with the majority decision insofar as it holds that the rate of internal revenue tax applicable .to the wine involved was that imposed by the collector for the reason that the alcoholic content of said wine exceeded 21 per centum by volume. I regret that I am unable to agree with the construction placed by the majority upon section 528 of the Tariff Act of 1930, and the holding that the internal revenue tax here assessed is a customs duty. The law imposing the tax (section 3030, Internal Revenue Code, as amended, 26 U. S. C. sec. 3030, as amended by sec. 1650, same title), does not designate it as a customs duty nor does it contain a provision to the effect that it shall be treated as a duty imposed under the customs laws. Congress in enacting section 528, supra, presumably was cognizant of the early decisions holding that taxes imposed on imports while in customs custody are essentially customs duties. Brown v. Maryland, 12 Wheat. 419; Almy v. California, 24 How. 169; Robbins v. Shelby County, 120 U. S. 489; May v. New Orleans, 178 U. S. 496; Fairbank v. United States, 181 U. S. 283; United States v. Shallus & Co., 9 Ct. Cust. Appls. 168, T. D. 37999; Porges v. United States, 10 Ct. Cust. Appls. 244, T. D. 38575; Batjer & Co. et al. v. United States, 11 Ct. Cust. Appls. 60, T. D. 38726; Shaw & Co. et al. v. United States 11 Ct. Cust. Appls. 226, T. D. 38990; Arden v. United States, 13 Ct. Cust. Appls. 42, T. D. 40879. In the light of that presumptive knowledge it enacted said section 528.

It is difficult to understand how that section can be considered a legislative ratification of judicial decisions inasmuch as its effect is to prohibit the internal revenue taxes here involved from being considered customs duties, although they are imposed on imports while in customs custody.

As I view the case, we must construe the demand of the collector made in this case to be an exaction. Certainly it is anomalous to hold that this tax is a customs duty for all purposes except the assessment of preferential rates of regular customs duty thereon. The logical solution of this confused situation, it would seem to me, is to consider the internal revenue tax imposed on liquors, wines, etc., which is not designated as a customs duty in the statute, as an exaction (within the jurisdiction of the Secretary of the Treasury) under the terms of section 514 of the Tariff Act of 1930. That section pro*130vides that protest against sucb exactions shall be filed “within sixty days after, but not before such * * * decision * * The instant protest was filed on January 8, 1946, which was within the statutory period from the date of the collector’s demand for additional internal revenue taxes, as evidenced by the “Notice of Duties Due” (exhibit 1) dated November 16, 1945.

I agree with the finding of the majority that the reliquidation is void. The Government claims said reliquidation is merely an adjustment of duties under the provisions of section 16.5 (e) of the Customs Regulations of 1943. However, we have the official stamp which designates the collector’s action as a reliquidation. This shows that said reliquidation did not take place until January 26, 1948. The merchandise was withdrawn on the following dates:

Butt No. 4_withdrawn January 22, 1945
Butt No. 2_withdrawn March 27, 1945
Butt No. 3___withdrawn October 26, 1945

In the case of warehouse goods an attempted reliquidation made more than a year from the date of withdrawal is a nullity. Bertrose Co. v. United States, 12 Ct. Cust. Appls. 19, T. D. 39893; Taylor & Co. v. United States, 11 Ct. Cust. Appls. 15, T. D. 38636; and United States v. Peter McQuade, 16 Ct. Cust. Appls. 334, T. D. 43080.

I therefore concur in the holding that the protest should be sustained.