dissenting:
I am unable to agree with the opinion of the majority.
The Office of Price Administration asserted a claim against plaintiff for overcharges in the amount of $76,802.85,. *404and it also threatened to assess plaintiff with treble damages. Three times the amount of the overcharges asserted was $230,408.43. The claim was settled for $200,000.00, which is a little over 86 per cent of treble damages.
Putting to one side the testimony of witnesses who participated in this settlement, the settlement agreement itself leaves no doubt that this $200,000 was paid in settlement, not only of the overcharges asserted, but also of the treble damages claimed. The settlement agreement sets out in the first two paragraphs the overcharges asserted, and then in the next paragraph it recites:
Whereas, the Office of Price Administration has asserted a claim against the corporation on behalf of the Price Administrator and pursuant to the Emergency Price Control Act of 1942 for three times the amount of the alleged overcharges above referred to, and
* * * * *
And the agreement then reads:
Noto, therefore, it is agreed * * *.8
This means, in consideration of the premises set out above, to wit, the overcharges asserted and the assertion of a claim for treble damages, the settlement was agreed upon.
I cannot but conclude, therefore, that the $200,000 was in settlement, not only of the overcharges asserted, but also of the treble damage claim.
The majority opinion in note 4 states, “it was his [the Administrator’s] policy to settle for less [less than treble •damages] in cases where he was satisfied that the violations liad been neither willful nor the result of a failure to take practicable precautions to comply with the law.” Cases are cited in support of the statement, and I understand the statement to be true. It follows, therefore, that when the Administrator asserted a claim for treble damages he did so on the premise that there had been a willful violation of the law, or a failure to take practicable precautions to comply *405witb tbe law. While the plaintiff denied the willfulness ■charged, nevertheless, it paid $133,197.15 in settlement of this charge. The majority opinion concedes that if the violation was willful, plaintiff is not entitled to deduct the amount paid as an ordinary and necessary business expense. 1 think we are compelled to hold that it was willful.
For these reasons I am unable to agree with the majority •opinion. I think plaintiff’s petition should be dismissed.
Jones, Chief Judge, took no part in the consideration and ■decision of this case.FINDINGS OF FACT
The court, having considered the evidence, the report of Commissioner George H. Foster, and the briefs and argument of counsel, makes findings of fact as follows:
1. The plaintiff is, and at all times material to this proceeding was, a District of Columbia corporation with its principal place of business in Washington, D. C. It is the .successor in all respects of Milton S. Kronheim and Son, Inc., which name was changed to that of plaintiff on February 8, 1950. Plaintiff is engaged in the wholesale distribution of wines and distilled spirits.
2. At all times material to this cause, plaintiff filed its Federal tax returns on a fiscal-year basis, said fiscal year beginning on November 1 of one year and ending on October 31 of the following year. Its books are kept on the accrual basis of accounting.
3. Plaintiff’s Federal corporate income and excess profits tax returns for the fiscal year ended October 31, 1944, reported a net taxable income of $424,245.75 and an income tax liability of $29,034.54, which was duly paid and an excess profits tax liability of $310,355.27, which was paid in cash or by credits during the period January 15, 1945, to May 30,1946.
4. On January 14, 1948, plaintiff filed a claim for refund in the amount of $160,000 for the fiscal year ended October 31, 1944. The basis of that claim was that the sum. of $200,000 should have been deducted by plaintiff in the fiscal year 1944. *406The claim was rejected by the Commissioner of InternaL Revenue on October 14,1949.
5. Plaintiff seeks to recover from defendant the sum of $160,000 with interest on $40,000 from January 12, 1945 interest on $40,000 from April 9, 1945; interest on $40,000 from July 10,1945; and with interest on $40,000 from October 8,1945.
6. The claim for refund asserted that plaintiff was entitled! to a deduction of $200,000, that being the amount plaintiff' agreed on December 7,1948, to pay pursuant to the following í
AGREEMENT IN SETTLEMENT OE THE TRICE ADMINISTRATOR’S-CLAIM EOR TREBLE DAMAGES UNDER THE EMERGENCY PRICE CONTROL ACT OE 1942
This agreement is predicated upon an investigation by agents of the Office of Price Administration and. upon information voluntarily submitted by Milton S.. Kronheim & Son, Inc., hereinafter referred to as the-corporation;
WHEREAS, as a result of the investigation and of examination of the information supplied by the corporation, it appears that quantity discounts on sales of liquor-customarily allowed in March of 1942 were discontinued during the period from January 1 through March 81,, 1943, which elimination of discounts is claimed by the’ Office of Price Administration to be the equivalent of a, price increase and to have thereby resulted in overcharges for the period in question in the sum of $25,121.81, and
WHEREAS, examination of the corporation’s books, and records and other information supplied by the corporation has resulted in the claim by the Office of Price-Administration that the corporation since November 1942 has exceeded applicable price ceiling regulations; in connection with products sold by the corporation and that the overcharges so made amount to the sum of $51,681.04, and
WHEREAS, the Office of Price Administration has-asserted a claim against the corporation on behalf of the Price Administrator and pursuant to the Emergency Price Control Act of 1942 for three times the amount of the alleged overcharges above referred to, and
WHEREAS, the claims asserted on behalf of the-Price Administrator are all civil in nature and are disputed by the corporation, and
*407WHEREAS, the parties hereto mutually desire to adjust and settle the claims asserted on behalf of the Price Administrator without the necessity of litigation.
NOW, THEREFORE, IT IS AGREED that the •claims of the Price Administrator through the Office of Price Administration against the corporation for overcharges in the sales of wine, spirits, and liquor to the date •of this agreement are settled, released, and forever discharged in consideration of the agreement of the corporation to pay to the Treasurer of the United States the ■•sum of $200,000.00 to be paid in sixteen monthly instal-ments as follows:
First instalment $38,401.42 on the execution of this •agreement; second instalment $6,402.85 on the 15th day ■of January 1944; third to the thirteenth monthly in-stalments inclusive, $6,400.00 each on the 15th day of ■each consecutive month thereafter commencing February 15, 1944 and the final three consecutive monthly in-stalments in the sums of $28,265.25 and $28,265.24 and :$28,265.24 respectively, on the 15th day of each succeeding month until paid in full:
IT IS FURTHER AGREED that this agreement ■shall not become final until the acceptance by the Treasurer of the United States of the initial instalment.
Signed and sealed at the City of Washington, District of Columbia, this 7th day of December 1943.
Milton S. Keonheim & Son, Inc.,
By (S) Milton S. Keonheim,
President.
Chester Bowles,
Price Administrator.
By (S) Robert K. Thompson,
Robert K. Thompson,
District Director.
(S) John L. Laskey,
John L. Laskey,
District Enforcement Attorney.
This agreement was the result of negotiations between Mr. Laskey for the Office of Price Administration and Mr. Alvin Newmeyer as counsel for the plaintiff. Mr. Carl W. Berueffy, chief enforcement attorney of the District of Columbia office of the Office of Price Administration and a subordinate of Mr. Laskey, was also familiar with the plaintiff’s case and participated in two or three of the conferences leading up to the signing of the agreement. The $200,-*408000 settlement figure was agreed upon, however, by Messrs. Laskey and Thompson for the OPA and Mr. Newmeyer for the plaintiff.
Mr. Newmeyer testified as a witness for the plaintiff. Mr.. Berueffy testified as a witness for the Government. It was stipulated that had Mr. Laskey been called as a witness by the Government, he would have been unable to testify to the facts-in the case because of his lack of memory of such facts.
The circumstances leading to these negotiations and to the execution of this agreement are described in the following-findings.
7. On August 5, 1942, the Administrator of the Office of Price Administration issued Maximum Price Regulation 193,. pursuant to which maximum wholesale prices for domestic distilled spirits were fixed as follows:
If the seller had sold the commodity in question during March 1942, the price was to be fixed at the highest price charged by the seller in that month for the same commodity. If he had not sold the same commodity but had sold a similar commodity in March 1942, then the price was to be fixed at the highest price charged in that month for “the similar-commodity * * * most nearly like it.” If the seller had not sold the same or a similar commodity in March 1942, then his price was to be fixed at the highest price charged by “the most closely competitive seller of the same class” in March 1942 for the same commodity or for the similar commodity most nearly like it. In calculating the “highest price” in March 1942, the seller was to allow customary discounts given in that period. (MPR, 193, §§ 1420.1 and 1420.13; 7 Fed. Reg. 6006 (Aug. 4,1942) ; General Maximum Price Regulation, § 1409.2 ; 7 Fed. Reg. 3153 (Apr. 30, 1942).) This regulation was substantially the same as the pertinent provisions of the General Maximum Price Regulation, issued in April 1942. MPR 193 incorporated many of the latter’s provisions by reference.
8. Plaintiff entrusted to its chief administrative officer, Bernard Cohen, vice president, the task of familiarizing himself with all price controls affecting the wholesale whiskey business. Mr. Cohen was assisted in this by plaintiff’s office *409manager, Samuel Greenblatt. Both were experts in the pricing of alcoholic beverages at wholesale. Both Mr. Cohen and Mr. Greenblatt studied all OPA actions relevant to the wholesale whiskey distributor-regulations, press releases, and interpretations. They subscribed to services which were designed to keep businessmen abreast of the latest price control developments. When Mr. Cohen went into military service in November 1942, Mr. Greenblatt succeeded to his functions regarding compliance with price controls.
9. Immediately after imposition of price controls, Mr. Cohen with the assistance of Mr. Greenblatt, prepared a price book which contained a page for each brand of liquor, listing the source of supply, the cost, size, age, proof, and other information relating to brands being sold in March 1942. As a new brand was sold by plaintiff, a page was inserted in the book for such brand; on that page was placed plaintiff’s explanation for the pricing of the new product, i. e.,. the commodity (sold during the base period) to which it was being compared for pricing purposes and the reasons for choosing said commodity. This book was not available at the time of trial although Mr. Cohen had made an unsuccessful search for it.
10. In 1942, known brands of liquor were becoming scarce, and some of the lower-priced brands in which the plaintiff had done a volume business were being taken off the market and other brands were substituted for them. Fixing of selling prices for new brands under these circumstances involved the exercise of judgment, and plaintiff’s representative made frequent inquiries at the District of Columbia office of OPA concerning the various regulations. Specific answers were not always given in the early period and plaintiff’s representatives were advised that the regulations were self-administering, and designed for each seller to make his own determination of price under the formula prescribed. Later .more detail was given by the Office of Price Administration.
11. Some time prior to August 1943, the Washington office of OPA received information of tie-in sales being conducted by plaintiff, and OPA decided to investigate that firm’s pricing.
*410In August 1943, Eli Berg, an employee of the Office of Price Administration first appeared at plaintiff’s place of business to conduct an investigation of company compliance with OPA regulations. Company personnel were told by plaintiff’s president to cooperate in every way possible with Mr. Berg, and they did. They made available to him all of the company’s books and records.
12. Berg was at plaintiff’s premises for two to three weeks and conducted an audit covering three months of the company’s operations, March, April, and June of 1943. In conducting his audit he sought and obtained information, records, etc. from employees of the company.
13. In mid 1943, whiskey was in short supply. This resulted in voluntary rationing programs which limited the amount of whiskey available to wholesalers for resale. As a result there was a further disappearance of established low-priced brands from the market for which distillers substituted higher-priced new brands.
During this period, plaintiff carried about one thousand items made up of various types, sizes, and brands of distilled spirits, each with its own price. Of the thousand, almost two hundred were new items.
14. As a result of Berg’s investigation of the three months’ operation, he reported violations of price control regulations by plaintiff in three categories which he described as follows:
a. Discontinuance after price control had started of discounts for quantity purchases allowable by plaintiff in March 1942.
b. Overpricing of new brands by use of price of non-comparable brands.
c. Selling in excess of ceiling prices by using prices not within the base period.
The audit made by Berg disclosed excess selling in the category (a) of $25,121.81, for the 3-month period and $51,681.04 combined for categories (b) and (c).
However, neither plaintiff’s counsel nor any of plaintiff’s employees or officials were ever made aware by any officials or employees of the OPA, or otherwise, that violations of the type described in category (c) had been found or that such violations constituted a part of the $51,681.04 figure *411reached by Berg. During the period of Berg’s investigation and thereafter, and during the negotiations with Mr. Laskey,, it was the understanding of plaintiff’s officials, employees,, and counsel that the $51,681.04 figure represented only overcharges during the 3-month period resulting from violations, of the type described in category (b). There is no evidence-as to what specific violations of the type described in category (c) were found by Berg in his audit or how many, or as to what part of the $51,681.04 figure was based upon overcharges resulting from violations of the type described in category (c). Mr. Berg did not testify. It was stipulated that, had he been called as a witness by the Government, he would have been unable to testify to the facts in the case because of his lack of memory of such facts. No overpricing was determined based on tie-in sales.
15. Plaintiff’s quantity discount policy in March 1942 was: to allow a discount on purchases of certain brands in quantities of five or more cases. When the scarcity of liquor arose, the usual placing and filling of definite orders was no longer continued. Plaintiff’s customers were demanding quantities greater than plaintiff could readily fulfill. The salesmen were no longer salesmen but merely contact agents to advise the customers of quantities available. Customers’ demands-were treated as standing orders and were fulfilled as liquor was received on an allocation basis.
Deliveries of orders by the plaintiff were reduced to one or two a month because of gasoline shortages.
Under these circumstances, plaintiff adopted the following policy with regard to discounts: When plaintiff received enough liquor so that, under its allocation plan, five or more cases could be allocated against the standing order of a particular customer, the usual discount would be given. Where,, however (and so was the more usual case), plaintiff allocated less than five cases against a standing order, because of the scarcity of liquor received by plaintiff, no discount was given. Because of the small number of deliveries being made by plaintiff, allocations were accumulated and delivered together. When such an accumulation and delivery was made, no discount was allowed if the accumulation represented *412allotments of less than five eases, even, though the accumulation was more than five cases and even though the customer’s standing order might have been for more than the accumulation that was delivered.
This practice of the plaintiff in determining entitlement to discount on the basis of cases allotted rather than on the basis of cases accumulated and delivered against standing ■orders was considered a violation by the OPA. The $25,-121.81 figure mentioned in the agreement represented the overcharges resulting from such alleged violations during the 8-month period investigated by Berg.
Plaintiff’s officers, employees, and counsel denied that their policy regarding discounts constituted a violation.
Interpretation No. 3 to M. P. P. No. 193 which was issued on February 27, 1943 (prior to the period investigated by Berg) provided as follows:
(d) March 1942 discounts. A quantity discount schedule used by a distributor in March 1942 must be kept in force, irrespective of rationing and even the over-all volume of the distributor’s business has been reduced. Thus, if a distributor granted a quantity discount for five case purchases in March 1942, he must continue to give the same quantity discount to a purchaser entitled to a five case allotment under a rationed plan where he buys that quantity under circumstances that would have entitled him to the discount in March 1942. However, if the distributor’s rationing plan results in an allotment of only four cases to such purchaser, the purchaser would not be entitled to the five case discount even though he may have ordered a five case quantity.
(e) Accumulation of allotment. Question has arisen as to whether a purchaser may accumulate his allotment for several delivery periods in order to secure in one delivery a quantity sufficient to entitle him to an extra discount. For example, if a distributor previously allowed a discount for fifteen case purchases but now delivers only five cases per month, may the purchaser order fifteen cases at one time with delivery at the end of three months so as to secure the discount applicable to that quantity? In such instance, the purchaser is, in effect placing three orders for five cases with delivery at one time and not one order for fifteen cases; therefore, the seller is not required to give the fifteen case discount.
*413On August 11,1943 (subsequent to the period investigated by Berg), the OPA issued Maximum Price Eegulation No. 445. Section 5.2 (d) (1) thereof provided as follows:
Customary discounts in effect during March 1942, in accordance with a wholesaler’s, retailer’s or primary distributing agent’s March 1942 customer classifications, must be applied to his maximum prices established under this Article: Provided, That discounts and allowances based solely on quantity purchases (in dollars or units) need not be maintained.
16. The claimed violations based on use of prices of non-comparable liquor involved a matter of opinion to a great -extent, and it related to a relatively small number of brands of liquors. The regulations left the primary determination -of these matters to the sellers, based on factors of type of liquor, i. e., whether Scotch, bourbon, rye, etc., age, proof, place of distillation, reputation of distiller, and the acceptability of uses based on reputation of distilleries and location •of the distillery.
A part of the question of this type of violation revolves •around the product sold as “Kronheim Bond” which plaintiff had sold during the base period. The Kronheim Bond was •straight bourbon, distilled in Kentucky by the James Bean Distillery, and during the base period it was a 4-year-old whiskey. During the period investigated by OPA, plaintiff sold a product under the same name that was, however, a 5-year-old whiskey. Plaintiff, for price-fixing purposes, compared this whiskey with the brands Old GrandDad and Old Taylor, both being favorably well-known brands of Kentucky whiskey produced by National Distillers, a distillery whose reputation among wholesalers was comparable to that of the James Bean Distillery.
Also, during the base period, plaintiff sold a brand under the name of “Cream of Baltimore” which was a 4-year-old 90 per centum proof rye whiskey distilled in Maryland by the Baltimore Pure Eye Company. After the base period, plaintiff, who had warehouse receipts for bulk whiskey in barrels in the Baltimore Pure Eye Distillery, began bottling this liquor under the name “Cream of Baltimore”. It *414was changed to 86 per centum proof and it was then a 5-year-old whiskey. Plaintiff in fixing the price compared it with a Maryland rye, the name of the brand not shown by the evidence. During the base period, plaintiff had sold Old Overholt bottled in bond 86 per centum proof at a price less than was charged for the Cream of Baltimore, 86 per centum proof as bottled by plaintiff from the bulk whiskey.
In addition, there were other instances where violation was claimed arising out of changed brands or new brands.
There was also discussion of excess selling price arising out of the fact that plaintiff sold to customers outside the District at a price which included the cost of District of Columbia excise tax. Plaintiff had placed the excise tax payment labels on this whiskey and explained the transaction as an inadvertent error. This practice was not claimed by the OPA to be violative of their regulations.
17. After the facts disclosed by the investigation, OPA planned to bring a suit against plaintiff for violations of price regulations. Negotiations, however, were entered into between plaintiff and OPA to settle the matter. No audit was made for any period subsequent to the three months early in 1943. The audit disclosed a total of $76,802.85 for the three months investigated. Plaintiff contended, when presented with the charges of OPA that there were no willful or culpable actions by plaintiff but indicated a willingness to settle the matter without suit. A settlement proposal was made by the OPA based on three times the indicated violations for the three months investigated which was intended to absolve plaintiff of all violations whether known or unknown up to the time of the agreement.
18. In the final negotiations, plaintiff was represented by its attorney, Alvin Newmeyer, and OPA by John L. Laskey. Mr. Newmyer urged plaintiff to sign the settlement to avoid the expense of a lawsuit and to avoid the unfavorable publicity that would result to plaintiff in a long-drawn-out action in court with, the daily newspaper accounts of the trial. The matter of the charge had been published but the accumulating *415¡effect of daily publicity, was in Mr. Newmeyer’s opinion a ¡sufficient reason for settling the matter as quietly as possible. OPA at no time thought otherwise than that the violations were willful.
19. The overcharges alleged resulted from payments by plaintiff’s retail dealers at the wholesale level in the “course ¡of trade or business”. The claim for overcharges, as a result, was asserted by OPA on behalf of the United States because the retailer-buyers were not entitled to bring suit under the Emergency Price Control Act of 1942 (§ 205 (3)) when the sale had been made in the “course of trade or business” rather than for use and consumption by the buyer.
20. No evidence was offered as to the dates of the payment ¡of the amount of $200,000.
21. At the trial, counsel for plaintiff urged the Commissioner to require the defendant to offer proof that plaintiff had in fact violated the law. The ruling was that as plaintiff was seeking a refund of taxes, the burden was on plaintiff to prove the facts upon which its claim for refund was grounded. To this ruling, the plaintiff asked, and was granted, an exception.
conclusion of law
Upon the foregoing findings of fact which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, with interest thereon ¡as provided by law, and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Bule 38 (c) of the rules of this court.
In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount ■due thereunder, it was ordered on January 9, 1959, that judgment for the plaintiff be entered for $146,185.51, with interest thereon as provided by law.
The majority opinion states that we cannot take into consideration the •compromise entered into. I think they are mistaken in this. The prohibition is against taking into consideration offers to compromise. It is nowhere Theld that you cannot take into consideration the recitals of an executed compromise agreement. Wigmore on Evidence, Vol. IV, sections 1061—1062.