LING, District Judge.
In these consolidated cases, appellants, husband and wife brought suit to recover deficiency assessments levied against them for the years 1945 and 1946. During the years involved appellant Norman Roybark was a used car dealer. After income tax returns for said years had been filed, the Government learning that Mr. Roybark had bought and sold automobiles for amounts in excess of the maximum ceiling schedule, investigated his affairs. Records were made available by appellants which showed cars bought and sold, however, such records reflected only legal ceiling prices. Information concerning over ceiling receipts and disbursements had been kept separately, but such records were not produced. In this situation the agent estimated the amount paid for automobiles in excess of ceiling prices. Deficiency assessments were made on these amounts, based on the now discarded theory that the amounts so paid were not allowable as cost in determining the cost of sales.
Hofferbert v. Anderson Oldsmobile, Inc., 4 Cir., 197 F.2d 504; Jones v. Herber, 10 Cir., 198 F.2d 544; Commissioner of Internal Revenue v. Guminski, 5 Cir., 198 F.2d 265; Commissioner of Internal Revenue v. Weisman, 1 Cir., 197 F.2d 221; Sullenger v. Commissioner, 11 T.C. 1076.
Appellants contended in the lower court, as they do here, that the burden of proof to justify retention of the taxes on any theory other than that upon which the assessment was made, was on the Government. Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623; Powell v. U.S., 9 Cir., 123 F.2d 472; Athens Roller Mills v. Commissioner, 6 Cir., 136 F.2d 125. The District Judge disagreeing with appellants, and, on detailed findings of fact and conclusions of law, and a judgment based thereon, denied their prayers for relief. 104 F. Supp. 759.
The findings of fact and conclusions of law are alike in both cases, and in pertinent part are as follows:
The Government argues that an action to recover taxes is in the nature of an action for money had and received, and the taxpayer must show the tax was over-paid. The principle relied on by the Government appears to be settled law.
Lewis v. Reynolds, 284 U.S. 281, 52 S. Ct. 145, 76 L.Ed. 293; Stone v. White, 301 U.S. 532, 57 S.Ct. 851, 81 L.Ed. 1265; Beaumont v. Helvering, 63 App.D.C. 387, 73 F.2d 110; Routzahn v. Brown, 6 Cir., 95 F.2d 766; Alexander Sprunt Son v. Commissioner, 4 Cir., 64 F.2d 424; U.S. v. Harris, 5 Cir., 216 F.2d 690.
Appellants, in the lower court, offered no proof whatever. Whether they over-paid their taxes for the years in question is problematical. They may in fact have paid less than they actually owed. In any event it was in their power, had their records truly reflected all aspects of their financial affairs, to have set the matter at rest. In this situation they cannot now be heard to say that a rule is harsh, which was invoked only because of their own dereliction.
Maroosis v. Smyth, 9 Cir., 187 F.2d 228.
Affirmed.