JOHN B. SEMPLE & CO., a Former Pennsylvania corporation, by Its Directors, John B. Semple, Samuel D. Cushing, Richard W. Robbins, Tracy M. Kramer, and Walter C. Miller, v. UNITED STATES

JOHN B. SEMPLE & CO., a Former Pennsylvania corporation, by Its Directors, John B. Semple, Samuel D. Cushing, Richard W. Robbins, Tracy M. Kramer, and Walter C. Miller, v. UNITED STATES. (District Court, W. D. Pennsylvania. June 27, 1925.) No. 3128. See, also, 1 F.(2d) 745. Charles A. Woods, of Pittsburgh, Pa., for plaintiff. Walter Lyon, U. S. Atty., and Warren II. Van Kirk, Sp. Asst. U. S. Atty., both of Pittsburgh, Pa. [MAJORITY — GIBSON, District Judge.] GIBSON, District Judge. The plaintiff has brought action to recover the sum of $3,315.72, with interest from September 3, 1920. This amount is alleged to have been improperly, retained by defendant upon the claim that it was due to it as a part of income tax payable by plaintiff. The defendant, in accordance with the Pennsylvania practice, has filed an affidavit raising questions of law. The facts are not in dispute, and coxmsel have stipulated that judgment shall be entered for one party or the other in accordance with the finding of the court in respect to the questions of law before it. The court, having found in favor of the plaintiff and against the defendant upon the questions of law raised by the latter’s affidavit of defense, will make an order for the entry of judgment in favor of the plaintiff. Plaintiff, at No. 2873, May term, 1923, brought its action against C. G. Lewellyn, former collector of internal revenue, to recover the amount claimed in the instant action. At that time the court considered, at some length, the basis of the claim for the return of the taxes paid, and found that the plaintiff was entitled to recover the same, but held that its action should have been brought against the present defendant rather than against the former collector of internal revenue, under the facts as they were made to appear in that case. The reasons which led to the entry of judgment in the instant case are set forth at some length in the opinion filed in the former case. See Semple & Co. v. Lewellyn (D. C.) 1 F.(2d) 745.