Nathan Gellman, Burt Horwitz and Peter Podany, Co-Partners, D/B/A Gellman Brothers v. United States

VAN OOSTERHOUT, Circuit Judge.

This appeal involves the question of what constitutes a sale at retail within the meaning of sections 1651 and 2400 of the Internal Revenue Code of 1939, as amended, 26 U.S.C.A. §§ 1651, 2400. Appellants, plaintiffs below and hereinafter called taxpayers, brought this suit for recovery of excise taxes alleged to have been erroneously assessed for the years 1947, 1948, 1949, and 1950, and January and February of 1951. Taxpayers paid the taxes assessed and filed timely claims for refund. The District Court, after trial without a jury, allowed the taxpayers judgment…