Opinion
No. 359.
June 30, 1930.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by the United States against one Packard truck, license No. 673462, N.Y. 1929, motor No. 026743. From a judgment dismissing the libel, the government appeals.
Reversed.
Howard W. Ameli, U.S. Atty., of Brooklyn, N.Y. (Herbert H. Kellogg, Asst. U.S. Atty., of Brooklyn, N.Y., and J. Bertram Wegman, Asst. U.S. Atty., of New York City, of counsel), for the United States.
Louis Halle, of New York City (Milton R. Kroopf, of New York City, on the brief), for claimant.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
This action is based on section 3450 of the Revised Statutes (26 USCA §§ 1181 and 1182) to forfeit a truck alleged to have been used to conceal distilled spirits with intent to defraud the United States of the tax thereon. In September, 1929, a Packard truck, containing a quantity of distilled spirits on which no tax had been paid was seized at Inwood, in the Eastern district of New York. The government filed its libel for forfeiture, and a claimant appeared and secured a dismissal on the ground that there was no allegation that the spirits were of domestic origin. Leave to amend was granted, but the district attorney elected to stand on the pleadings without change, and the libel was dismissed. By its appeal the government now seeks to have established its right to have distilled spirits of foreign manufacture held contraband under section 3450, Rev. St. (26 USCA §§ 1181, 1182), to the same extent and under the same circumstances that those of domestic origin would be.
The appellee relies on our decisions in The Squanto, 13 F.2d 548, and The Pictonian, 20 F.2d 353. In both of those cases imported intoxicating liquors were involved, and it was held that section 3450, Rev. St. for that reason did not apply. Those seizures, however, were both made before section 900 of the Revenue Act of 1926 (26 USCA § 245) was in effect. This last-named statute has clearly imposed a tax on imported distilled spirits, and in plain language provides that they shall "be held to be imported into the United States" even if smuggled or brought in unlawfully. Now, therefore, section 3450, Rev. St. (26 USCA §§ 1181, 1182), undoubtedly applies alike to distilled spirits of foreign and of domestic origin. As to its application to the latter, see United States v. One Ford Coupé, 272 U.S. 321, 47 S. Ct. 154, 71 L. Ed. 279, 47 A.L.R. 1025.
Judgment reversed.