The opinion of the court was delivered by: SMITH
This is an action for the recovery of social security and unemployment taxes, assessed and collected under the Federal Insurance Contributions Act and the Federal Unemployment Tax Act, subchapters (A) and (C) of Chapter 9 of the Internal Revenue Code, 26 U.S.C.A. § 1400 et seq., and 26 U.S.C.A. § 1600 et seq. The complaint alleges, and the answer denies, that the taxes were illegally assessed and collected. The action is before the Court on a stipulation of facts, and the only issue presented for determination is one of law.
The plaintiff owned and operated a stock farm at Secaucus, New Jersey. The enterprise was devoted exclusively to the production and sale of pigs, and its dominant purpose was admittedly agricultural. The livestock was fed on kitchen waste obtained from restaurants and institutions located in the metropolitan area of New York City. The waste was collected daily by employees of the plaintiff, pursuant to contracts with the restaurants and institutions.
The plaintiff owned and operated thirteen trucks which were used in the daily collection of waste; when not in use these trucks were garaged on the farm premises. The trucks were used on designated routes in the metropolitan area, and each truck was manned by a driver and a helper who were employed exclusively in the collection and transportation of waste. After the waste was delivered at the farm it was handled by livestock feeders. The drivers and their helpers performed no duties other than those described; they performed no work on the farm.
The plaintiff, apparently prompted by some doubt as to the status of the said employees and its tax liability under the said Acts, requested an administrative determination. The Deputy Commissioner of Internal Revenue, after a consideration of the information furnished by the plaintiff, advised the Collector of Internal Revenue, the defendant herein, as follows: 'Services performed by employees of a corporation in collecting garbage do not constitute 'agricultural labor' for Federal employment tax purposes.' (See exhibit H annexed to the stipulation of facts).
The Commissioner of Internal Revenue determined the tax liability of the plaintiff under the Federal Insurance Contributions Act for the period October 1, 1939 to March 31, 1944, inclusive, and under the Federal Unemployment Tax Act for the calendar years 1940 to 1943, inclusive. The taxes were assessed pursuant to the applicable provisions of the Internal Revenue Code, and thereafter tax returns were filed by the plaintiff. The taxes were paid to the Collector of Internal Revenue, the defendant herein, under protest.
Thereafter, on April 3, 1945, the plaintiff filed timely claims for refund. These claims were disallowed and the present action followed their disallowance.