FRANKFURTER, J., concurring. 338 U.S. greater the risk the smaller the impact of the opportunities of the distant market. The short of the matter is that for its difficult task of valuing the Court of Claims should not be confined either to acceptance or rejection of the Florida demand in toto. Like most problems in the law it is a matter of degree. 4. This Court should not go beyond indicating the broad lines for adjudication by the Court of Claims, leaving to that court discretion appropriate to its experience in applying the indicated standards to the facts before it. The analysis we have outlined must be fitted to facts not now before us.1 I am not prepared therefore to specify as a matter of law what number of logically relevant sales do or do not meet the claimant's burden. After the Court of Claims has made additional findings in the light of this Court's decision it will be time enough to consider whether the data before it are too tenuous to permit solid inferences from them, as set forth in appropriate findings, regarding the weight which the Court of Claims may accord to the Florida demand. 1 The evidence in this case could of course have been included in the record brought here under the Act of May 22, 1939, 53 Stat. 752, amending §3 (b) of the Act of February 13, 1925, 43 Stat. 936, 939. See also Rule 41 of this Court. Syllabus. WILMETTE PARK DISTRICT v. CAMPBELL, COLLECTOR OF INTERNAL REVENUE. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 75. Argued November 15-16, 1949.—Decided December 12, 1949. Petitioner, an instrumentality of a State, operated on a non-profit basis a public bathing beach to which all persons entering were charged admission. For failure to collect and pay the tax imposed by § 1700 (a) of the Internal Revenue Code on charges for "admission to any place," penalties were assessed against petitioner under § 1718 of the Code. Held: 1. Having paid the penalties from its general revenue fund, petitioner's financial interest was sufficient to give it standing to sue for refund. P. 414. 2. Within the meaning of § 1700 (a), the charge made by petitioner for admission to the beach was an "amount paid for admission to any place," and that section was applicable. Pp. 414-419. (a) Congress did not intend by § 1700 (a) to tax only admissions to "spectator entertainments." P. 415. (b) The beach area here involved was a "place" within the meaning of § 1700 (a) (1). Pp. 415–416. (c) Congress did not intend to exempt non-profit operations from the admissions tax imposed by § 1700 (a) of the Code, notwithstanding certain exemptions that had previously been allowed. P. 416. (d) That activities conducted by a municipality were not intended to be exempt from the admissions tax is indicated by a long-continued administrative construction, expressly denying such exemption, which has been followed by repeated reenactment of the relevant language without change. Pp. 416-418. (e) The fact that petitioner's beach patrons make use of a beach and its facilities, and that its admission charge may by local law be considered a "use tax," does not render § 1700 (a) inapplicable. Pp. 418-419. 3. The application of the admissions tax in connection with this activity of the petitioner, though an instrumentality of a State, does not violate the Federal Constitution. Pp. 419-420. 172 F. 2d 885, affirmed. Opinion of the Court. 338 U.S. In a suit for refund of penalties assessed for failure to collect federal admissions tax, the District Court entered judgment for petitioner. 76 F. Supp. 924. The Court of Appeals reversed. 172 F. 2d 885. This Court granted certiorari. 337 U. S. 937. Affirmed, p. 420. Henry J. Brandt argued the cause for petitioner. With him on the brief was Gilbert H. Hennessey, Jr. Edward R. Johnston was also of counsel. Lee A. Jackson argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack, Helen Goodner and Melva M. Graney. MR. JUSTICE CLARK delivered the opinion of the Court. 1 Section 1700 (a) (1) of the Internal Revenue Code, as amended, provides for the imposition, except as to certain classes of persons under circumstances not important here, of "A tax of 1 cent for each 10 cents or fraction thereof of the amount paid for admission to any place, including admission by season ticket or subscription." Paragraph (2) of the subsection declares that the tax "shall be paid by the person paying for such admission." And § 1715 requires that "Every person receiving any payments for admission . . . subject to the tax imposed by section 1700... shall collect the amount thereof from the person making such payments." This suit, brought to recover penalties paid by petitioner for noncollection of federal admissions tax, presents two questions for determination: Whether § 1700 (a) is applicable to paid admittances to a bathing beach operated without purpose of gain by a local park district of Illinois; and, if the Code provision is to be so inter 1A war tax rate of 1 cent for each 5 cents or major fraction thereof has been in effect since April 1, 1944, pursuant to Revenue Act of 1943, § 302 (a). 58 Stat. 21, 61 (1944). 411 Opinion of the Court. preted, whether the imposition of admissions tax in connection with such state activity is within the constitutional power of Congress. Petitioner is Wilmette Park District, a body politic and corporate located within the Village of Wilmette, Cook County, Illinois. Organized and administered pursuant to Illinois statutes, the District includes within its jurisdiction four park areas. The largest, Washington Park, extends for approximately three-fourths of a mile along Lake Michigan and was acquired partly by grant from the State of Illinois, partly by purchase, and partly by exercise of the power of eminent domain. At the north end of Washington Park, petitioner has operated a public bathing beach during the summer months for many years, under authority conferred by the Illinois Legislature. The beach has been used primarily by residents of the District, but also has been open to nonresidents. Among the facilities which the District provided at the beach during the period under review were a bath house, automobile parking area, life-saving equipment, flood lighting, drinking fountains, showers, spectator benches, bicycle racks, first aid, and supplies. The operation and maintenance of the area and its various services were solely by the District, which employed the necessary personnel. Petitioner charged all persons for admittance to the beach. Its charges were of two types: a daily fee of fifty cents on weekdays and one dollar on Saturdays, Sundays and holidays, for which no ticket was issued; and a flat rate for a season ticket which could be purchased on an individual or family basis. These charges were made to cover the expense of maintenance and operation of the beach and of some capital improvements. Over the years the charges were intended merely to approximate these costs and not to produce net income or profit to petitioner; during the period 1940-1944 the accounts of the beach, 860926 O-50-33 Opinion of the Court. 338 U.S. maintained on a cash receipts and disbursements basis, reflected an excess of receipts over expenditures of $42.11. In July 1941 the Collector notified petitioner to collect a tax of 10 per cent on all tickets to the beach sold on or after July 25 of that year. Petitioner had not previously collected such taxes, and it refused to do so after the Collector's notice. Subsequently the Commissioner under § 1718 of the Code assessed over petitioner's protest penalties in the amount of the tax which the Commissioner claimed should have been collected under § 1700 (a) from July 25, 1941 through 1945, plus interest and sums due under § 3655 (b) of the Code for failure to pay the tax on demand. These penalties amounted to $6,139.93 and were paid out of petitioner's general funds raised by property taxes. Petitioner filed timely claims for refund which were rejected, and in 1946 brought this suit against the Collector. The District Court entered judgment for petitioner. 76 F. Supp. 924.2 The Court of Appeals for the Seventh Circuit reversed. 172 F. 2d 885. Because the questions presented have importance in the administration of the admissions tax sections of the Code, we granted certiorari. 337 U. S. 937. First. The Government raises no issue as to petitioner's standing to sue for refund. As recovery is here sought of penalties paid from petitioner's general revenue fund after its failure to collect the tax, we deem petitioner's financial interest clearly sufficient.3 Second. Section 1700 (a) is applicable if the charge made by petitioner for admittance to the beach was, 2 The District Court allowed recovery only of payments made since January 1, 1945, when respondent took office as Collector. These payments were based on petitioner's operations after October 1, 1941, through 1945. Prior to January 1, 1945, petitioner paid $57.20 on the basis of operations from July 25, 1941, to October 1, 1941. 3 See 42 Ill. L. Rev. 818, 819-820 (1948). |