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REVISED STATUTES Section 955:

Ekstrom, Admr.. Section 3226:

Boyce.--

Olds & Whipple, Inc. Section 3228:

Baltimore County Bank.Section 4888:

Morse

114 705

539

649

JUDICIAL CODE Section 145:

Olds & Whipple, Inc.---

Forest Lumber Company -
Section 177 (b):

Los Angeles and Salt Lake Railroad Company -
McNeill-Allman.

705
188

87 109

CASES DECIDED

IN

THE COURT OF CLAIMS

December 6, 1937, to April 18, 1938

GRACE M. EKSTROM, ADMINISTRATRIX OF THE ESTATE OF ERIC S. EKSTROM, TRUSTEE FOR THE STOCKHOLDERS OF MECHANICS MACHINE COMPANY v. THE UNITED STATES

(No. J-24. Decided December 6, 1937. Judgment entered

May 2, 1938.]

On the Proofs Excise tar; what constitutes an automobile "part" or "accessory.

Where a special type of transmission is primarily designed and adapted for use in connection with an automobile engine, and was in fact used in some instances as a part of an automobile or truck, it does not necessarily follow that such transmission is an automobile part or accessory, under the regulations of the Internal Revenue Department, and in order to make the part taxable it must, under the regulations, be designed for the special purpose of being used as, or to replace, a component part of an automobile. Universal Battery Co. v. U. 8., 281 U. S. 580, 583; Milwaukee Motor Products Co. v. U. S.,

66 C. Cls. 295, 302. Abatement of litigation; state statutes controlling.–Under the Illi

nois law, as well as under R. S. where a corporation has brought suit within the two-year period prescribed by the statute for winding up its business, it may be prosecuted to judgment after the expiration of the period. Oberndorfer v. U. S., 65 C. Cls. 376; B. & O. R. R. Co. v. Joy, Admr., 173

U. S. 226, 229, cited. Substitution of trustee.—Trust may not be permitted to fail for

want of a trustee; an executor or administrator may continue an action if under the Illinois law a trustee successor has not been otherwise appointed.

1

Reporter's Statement of the Case
Laches.—Where the defense has not been prejudiced thereby, and by

proper action proceedings could have been hastened, laches in

application for substitution of plaintiff is no defense. The Reporter's statement of the case:

Mr. George M. Morris for the plaintiff. Morris, KixMiller & Baar were on the briefs.

Mr. John W. Blalock, with whom was Mr. Assistant Attorney General James W. Morris, for the defendant. Messrs. Robert N. Anderson, Fred K. Dyar, and Mrs. Elizabeth B. Davis were on the brief.

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The court made special findings of fact as follows:

1. Mechanics Machine Company, at all times hereinafter mentioned up to September 24, 1930, was a corporation organized and existing under the laws of the State of Illinois. The company, between January, 1921, and March, 1926, was engaged in the manufacture and sale of transmissions and parts therefor and of universal joints and parts therefor.

On July 30, 1928, the directors and stockholders of Mechanics Machine Company, at duly constituted meetings thereof, voted to dissolve the corporation and transferred and assigned to the then President, Eric S. Ekstrom, all the assets of Mechanics Machine Company, including the claims against the United States for refund of excise taxes hereinafter referred to, for the purpose of having the corporate debts paid and the remaining assets liquidated and distributed to the stockholders of the company. Mechanics Machine Company did no business after July 30, 1928, and its charter was forfeited on September 24, 1930, by the State of Illinois, it having failed to comply with the State statutes as to filing of annual reports and neglected to pay its franchise tax and penalties assessed against it. Eric S. Ekstrom paid all the debts of Mechanics Machine Company out of the property assigned and transferred to him, and liquidated and distributed to the stockholders all the assets of the company except the claims for refund herein sued upon for excise taxes paid by the company. Eric S. Ekstrom continued up to the date of his

Reporter's Statement of the Case death on January 12, 1936, to be the liquidating trustee. Grace M. Ekstrom, widow of the late Eric S. Ekstrom, was appointed administratrix of his estate on January 20, 1936, and was substituted as party plaintiff herein by order of this Court dated August 17, 1936.

2. Mechanics Machine Company paid, as excise taxes under Section 900 of the Revenue Acts of 1918 and 1921 and Section 600 of the Revenue Act of 1924, certain amounts to the Collector of Internal Revenue for the first Illinois District. These payments, the dates thereof and the periods for which made, are classified below in two groups: (a) the payments made upon sales of complete "Jumbo" transmissions, and (b) the payments made upon sales of parts for "Jumbo” transmissions, of complete universal joints, and of parts for universal joints:

Period

Dato Paid

Tax Paid on
Complete

"Jumbo"
Transmissions

Tax Paid on

"Jumbo" Transmission

Parts, Com-
plete Universal
Joints, and

Universal
Joint Parts

Total Tax

Paid

$2.50

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Jan. 1921.
Feb.
Mar.
Apr.
May
June
July
Aug.
Sept.
Oct.
Nov.
Dec.
Jan. 1922.
Feb.
Mar.
Apr.
May
June
July
Aug.
Sept.
Oct.
Nov.
Dec.
Jan. 1923.
Feb.
Mar.
Apr.
May
June
July
Aug.
Sept.
Oct.
Nov.
Dec.

2/19/21.
3/30/21.
4/20/21.
8/9/21.
6/29/21.
7/19/21
9/29/21.
9/29/21
10/22/21.
12/6/21.
12/30/21.
1/18/22
2/28/22
4/6/22
4/29/22
5/25/22.
7/8/22
8/3/22
9/7/22
10/7/22
12/7/22
11/28/22.
12/30/22
2/1/23.
3/22/23.
4/10/23.
6/8/23
6/12/23..
7/18/23.
7/31/23.
9/14/23.
10/19/23.
11/7/23
12/6/23.
1/16/24.
2/9/24.

$33. 24 24. 33 48. 72 68. 70 39.28 96. 79 79. 26 89. 26 154. 43 48. 83 20.01 35. 99 31. 54 30. 20 67. 10 150. 50 65. 05 65. 54 141. 48 94. 64 94. 38 137.34 82.08 56. 28 48. 67 38. 17 64. 77 89. 54 163. 47 132. 41 151. 48

$38. 74 24. 33 48. 72 68. 70 39.28 96.79 79. 26 89. 26 154. 43 48. 83 20.01 35, 99 31. 54 30. 20 67. 10 150. 50 65. 05 65. 54 141. 48 94.64 94. 38 137.34 82.08 56. 28 48. 67 38. 17 194. 14 197. 13

353. 46 1,094.74

167. 23

91.70 912. 67

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129. 37 107.89 189.99 962. 33 15. 75

66

91.79 169. 44 200. 12 143, 50 102. 17

622. 63 1, 029.08

722. 29

60

743. 23 422. 51 886, 48 620. 12

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