The opinion of the court was delivered by: FOLEY
Plaintiff J. G. Shotwell seeks to recover taxes collected under Section 3475, Internal Revenue Code, 26 U.S.C.A. § 3475, in the amount of $ 15,168.20 together with interest from time of payment.
The Court is presently concerned with motions for summary judgment by both plaintiff and defendant.
By stipulation filed August 13, 1956, the parties have agreed that the deposition of Bertram W. Hoare, the Assistant Chief of Construction Division, Corps of Engineers, United States Army, taken October 27, 1955, including Joint Exhibits 1, 2 and 3, deposited with the Clerk of the Court, may be filed herein as agreed facts in this cause.
A summary of the material facts alleged in plaintiff's complaint and admitted by defendant's answer is the following:
Taxes under Section 3475 of the Internal Revenue Code were collected by Hugh H. Earle as the Collector of Internal Revenue for the District of Oregon who was not in office as Collector at the time this action was commenced;
The Court has jurisdiction over this action under Section 1346(a)(1), Title 28 U.S.C.A.;
Exhibit 'A', attached to the complaint, is a copy of a contract between the Department of the Army and the plaintiff;
The haul road from Berrian Island, Washington, to the McNary Dam site was on Government owned property and the Corps of Engineers, United States Army, in charge of the construction of the McNary Dam Determined Berrian Island and the haul road to be within the work area of the McNary Dam project. The aggregates moved from Berrian Island and deposited at the McNary Dam site were incorporated into the McNary Dam concrete structure;
The Collector of Internal Revenue assessed to the plaintiff and the plaintiff has paid to the said Collector of Internal Revenue during November and December, 1951, the sum of $ 15,168.20 as federal transportation tax under Section 3475 of the Internal Revenue Code at three per cent on the amount of $ 505,606.54;
On April 28, 1952, the plaintiff filed with the Collector of Internal Revenue, District of Oregon, Portland, Oregon, a claim for a refund of $ 15,168.20 assessed and collected in November and December, 1951. A copy of said claim is attached to the complaint as Exhibit 'C'.
Portions of the deposition of Bertram W. Hoare, which the Court deems of interest here, are as follows:
'Q. Would you briefly state the sequence of events which occurred as a result of the construction of the dam axis -- the dam at the dam axis?
'A. I presume you mean the general schedule of operations for the complete project? The initial operation was to acquire real estate at the immediate damsite. Following that, construction was instituted of some living facilities for construction workers in McNary City, and also in the temporary housing area known as Homaja, which was approximately two miles upstream from the dam on the Washington shore. McNary City was located on the Oregon shore, the nearest point to the dam itself being approximately one-half mile and the furthest point a mile and a half from the Oregon abutment. The next operation was the construction of certain access facilities to the damsite, followed by a contract for the excavation of the area in which the navigation lock was to be constructed. This lock was built on the Washington end of the dam. At about the completion of the excavation contract, a ...