Dissenting Opinion by Judge Whitaker 98 C. Cls. It lays down a general rule for the protection of the United States in transactions between it and corporations and to prevent its action from being influenced by anyone interested adversely to it. It is a penal statute and is not to be extended to cases not clearly within its terms or to those exceptional to its spirit and purpose. * ** We believe this is one of the exceptions to the general rule. It was not the intention of the statute to cover a case of the nature of the instant case where the action of the President of the Corporation, who happened to be an agent of the Government, was solely for the purpose of officially signing the lease or voting on its acceptance, and where he took no part in the negotiations and derived no benefit, his actions being purely ministerial and in no way detrimental to the interests of the United States and transcended no public policy. The additional space occupied by the National Youth Administration from April 19, 1936, to August 31, 1936, was signally free from any possible taint or color of undue influence, and plaintiff is entitled to recover for the use of this space. In our judgment, plaintiff is entitled to recover for the entire additional space in the Architects Building which was occupied by the Works Progress Administration from September 10, 1935, to April 18, 1936, in the sum of $5,672.97, and for the space occupied by the National Youth Administration from April 19, 1936, to August 31, 1936, in the sum of $688.75. Plaintiff is entitled to recover $6,361.72. It is so ordered. JONES, Judge; and LITTLETON, Judge, concur. WHITAKER, Judge, dissenting in part and concurring in part: I am unable to agree with the conclusion reached by the majority. The majority opinion distinguishes this case from Rankin v. United States, No. 45200, this day decided, because in the Rankin case the plaintiff himself negotiated the arrangement whereby the Works Progress Administration occupied space under lease to his firm of Rankin & Kellogg, and in the case at bar the lease was negotiated 368 Syllabus by the rental agent of the building and the rental agent of the local office of Works Progress Administration. However, the rental agent of the building of course acted under the supervision and control of the plaintiff as the President of the Architects Building Corporation, and the rental agent of the Works Progress Administration acted under his supervision and control as the State Director of the Works Progress Administration. In the one case he acted himself, and in the other through his agents. Qui facit per alium, facit per se. This was a transaction forbidden, I think, by section 93, Title 18, U. S. Code. Not to so hold would permit the easiest sort of evasion of this statute. All an officer of a corporation would have to do would be to tell some one of his subordinates to negotiate a lease with him as an officer of the United States, or with one of his agents acting under his control as an officer of the United States. Plaintiff's president certainly knew of the negotiation of the lease by his building agent with his Works Progress Administration agent. Such conduct, I think, is forbidden by the statute and, therefore, plaintiff is not entitled to recover for the space occupied by the Works Progress Administration. I think it is entitled to recover for the space occupied by the National Youth Administration, and to this extent I concur in the majority opinion. MADDEN, Judge, concurs in this opinion. JOHN J. McCLURE v. THE UNITED STATES [No. 45240. Decided February 1, 1943] On the Proofs Internal revenue tax; importation of distilled spirits; statute of limitation; fraud; validity of assessment by Commissioner.-Where the Commissioner of Internal Revenue on the September 1938 Supplemental List, under the Revenue Act of 1926 (44 Stat. 9, 101) and the National Prohibition Act (41 Stat. 305, 317), assessed against plaintiff certain internal revenue taxes on distilled spirits alleged to have been imported by plaintiff during the period from March 1929 to January 1931 and on October 29, 1930, and November 12, Syllabus 98 C. Cls. 1930; and where, after notice of assessment and demand for payment, said taxes were paid under protest by plaintiff on November 28, 1938, and a claim for refund, later amended, was filed by plaintiff, alleging that the claimant had not imported the distilled spirits as charged and alleging further that the assessment had been made after the liability for said taxes had been barred by the statute of limitation; and where such claim for refund was rejected by the Commissioner; it is held upon the evidence adduced that said distilled spirits were imported as alleged, that such importation was with intent to defraud the Government of the lawful revenue due, and plaintiff is not entitled to recover. Same; statue of limitation; fraudulent intent to evade taxes.-Where there has been a fraudulent attempt to evade the payment of tax, and where assessment was made under a charge of fraud; the statute of limitation (Revenue Act of 1926, section 1109, as amended by the Revenue Act of 1928, section 619 (a)) is not applicable. Same; presumption in favor of findings and assessment by Commissioner.-A tax assessment made by the Commissioner of Internal Revenue is presumed to be correct and the facts found by the Commissioner to support the assessment are presumed to be correct. Niles Bement Pond Co. v. United States, 281 U. S. 357, 361, and other cases cited. Same; fraud not presumed.-Fraud will not be presumed. Vitelli v. United States, 250 U. S. 355, and other cases cited. Same; fraud established by proper inference from facts proven.—It is the duty of the court to draw from the facts proven all reasonable inferences, and where no reasonable inferences can be drawn from the facts found or admitted other than that fraud has been committed or attempted, fraud is sufficiently established. Tucker v. Moreland, 10 Peters (U. S.) 57, 78, cited. Same; allegations of refund claim not evidence unless supported by testimony.-Where plaintiff's claim for refund was admitted in evidence by stipulation of the parties; and where thereafter plaintiff took the witness stand but was not asked to reaffirm the statements made in his claim, and did not reaffirm such statements; and where plaintiff did not in any other way testify whether or not he had imported the distilled spirits in question, as alleged by the Commissioner of Internal Revenue; it is held that under such circumstances the allegations of the claim for refund cannot be considered as evidence of the facts therein recited. Same. Where defendant's attorney did not make it plain that he was agreeing to the receipt in evidence of plaintiff's claim for refund only as proof that such claim had been filed and not as evidence of the facts therein alleged; it is not to be implied that he agreed that such allegations might be treated as evidence, since the plaintiff who had made the allegations was in court ready to testify. 381 Reporter's Statement of the Case Same; intent to defraud shown from facts proven.—Where it is established that distilled spirits were imported, and where for seven years no report of such importation was made; and where during such period no tax under the applicable internal revenue statute was paid, and such tax was not paid until after assessment by the Commissioner of Internal Revenue and demand for payment; it is held that the only reasonable inference is that there was intent to defraud the Government of revenue. Same; counterclaim; tax on diversion.—Where the Commissioner made an assessment upon a finding that distilled spirits had been imported without payment of the tax due; and where the Commissioner also found that the distilled spirits had been diverted for beverage purposes but did not assess the tax on diversion; and where there is no other proof of diversion; it is held that the defendant is not entitled to recover from plaintiff the amount of the diversion tax, the allegations of defendant's counterclaim not having been sufficiently proven. The Reporter's statement of the case: Mr. J. H. Ward Hinkson for the plaintiff. Mr. J. H. Sheppard, with whom was Mr. Assistant Attorney General Samuel O. Clark, Jr., for the defendant. Messrs. Robert N. Anderson and Fred K. Dyar were on the briefs. The court made special findings of fact as follows: 1. Plaintiff is a citizen of the United States and a resident of Chester, Pennsylvania. 2. On his September 1938 Supplemental List, the Commissioner of Internal Revenue assessed against the plaintiff the sum of $62,808.90 covering the tax on 57,099 gallons of distilled spirits which the Commissioner determined plaintiff had imported into the United States and diverted to beverage purposes during the period March 1929 to January 1931. On the same list the Commissioner made a further assessment against plaintiff in the sum of $14,190, covering the tax on 12,900 gallons of distilled spirits which the Commissioner determined plaintiff had imported into the United States and diverted to beverage purposes on October 29, 1930, and November 12, 1930. Reporter's Statement of the Case 98 C. Cls. The tax assessed was at the rate payable for any importation and not at the rate payable where there was an importation and diversion for beverage purposes. Each of the above assessments was made under a charge of fraud. 3. On or about November 8, 1938, the Collector of Internal Revenue made written demand upon the plaintiff for the payment within ten days of the taxes which had been assessed as set out in the preceding finding. In compliance with that demand, plaintiff made payment of the total amount of $76,998.90 to the Collector on November 18, 1938. The payment was accompanied by a letter of protest and by a claim for refund on Treasury Form No. 843. The claim was amended on December 5, 1938, and December 13, 1938. As finally amended, the claim set out the following basis therefor: The deponent did not at any time import or divert the distilled spirits upon which the above-mentioned tax appears to have been assessed, or any part thereof, either directly or indirectly; nor did he at any time manufacture, produce, possess, own, or control the said distilled spirits, or any part thereof. He has neither fraudulently nor willfully failed to make a return or pay a tax in connection with the importation of such distilled spirits at any time. The deponent is altogether ignorant of the circumstances and reasons under which or on account of which the said tax was assessed, and has paid the same under duress to forestall a levy and distraint upon his property. Moreover, the deponent is advised and believes that no authority is vested in the Collector of Internal Revenue to collect the internal revenue tax imposed by law upon distilled spirits imported into the United States. Even though a tax had been due by the deponent on account of the importation of distilled spirits within either of the periods above mentioned, the legal assessment and collection of such tax as effected in the instant case would have been barred by the statute of limitations. The deponent respectfully requests that he be furnished with a statement of the facts which gave rise to the assessment of the above-mentioned tax, and that he be afforded an opportunity to confer with the Commis |