$699 Opinion of the Court 1932, 1934, 1936 and 1938 without change material to our problem. Congress has by reenactment acquiesced as frequently in the present departmental interpretation as in the earlier one, so that this history too is of no real assistance in the solution of our problem. The case of International Milling Co. v. United States, 89 C. Cls. 128, involved the same question under section 131 (f) of the Revenue Act of 1928. As we have said, up to 1931, the time that the tax there involved was imposed, administrative interpretation and Congressional reenactment both tended to support the construction here contended for by plaintiff. This court's decision in that case approved that construction. Administrative interpretation and Congressional reenactment since 1931 have all pointed in the other direction, which history tends to neutralize or destroy one of the reasons upon which the International Milling decision was based. But whether that be a sufficient distinction or not, we have, upon a careful reconsideration of the question, concluded that the interpretation given to the 1928 statute in the International Milling decision is not the correct interpretation of the 1936 and 1938 acts here involved. We are aware that the United States Circuit Court of Appeals for the Second Circuit in the case of F. W. Woolworth & Co. v. United States, 91 F. (2d) 973, and the United States District Court for the Western District of Pennsylvania in the case of Aluminum Co. of America v. United States, 36 F. Supp. 23, reached the conclusion which plaintiff here urges. Nevertheless, our conclusion is that the tax to which the proportion is to be applied is the foreign tax paid only upon so much of the foreign income as constitutes accumulated profits, according to the definition of the statute. It follows that plaintiff is not entitled to recover and its petition is, accordingly, dismissed. It is so ordered. JONES, Judge; WHITAKER, Judge; and LITTLETON, Judge, concur. Opinion of the Court WHALEY, Chief Justice, dissenting: 94 C. Cls. I am of the opinion that the decision in the case of International Milling Co. v. United States, 89 C. Cls. 128, is correct. I can see no justification for overruling that decision because the Department has refused to follow it. Congress has not changed the law in subsequent enactments which tends to show acquiescence in that decision. The mere fact that the Department refused to accept the decision is not persuasive in changing the ruling of the Court. The decision has been uniformly applied by other Courts as shown in the majority opinion. HOWARD C. MYERS ET AL. v. THE UNITED STATES [Nos. 43671, 43672, 43673, 43674, 43675] Extra pay for overtime; customs employees. Decided January 6, 1941; plaintiffs entitled to recover. Entry of judgment suspended. Defendant's motion for new trial overruled March 12, 1941. See 92 C. Cls. 447. On October 17, 1941, on the court's own motion, it was ordered "that the special findings of fact, the conclusion of law, and opinion filed herein January 6, 1941, be and the same are vacated and withdrawn; and the case is now remanded to the December calendar for oral argument ab initio," CASES DECIDED IN THE COURT OF CLAIMS June 2, 1941, to November 30, 1941 INCLUSIVE, UNDER THE ACT OF JUNE 25, 1938, TO RECOVER INCREASED COSTS IN CONNECTION WITH GOVERNMENT CONTRACTS RESULTING FROM THE ENACTMENT OF THE NATIONAL INDUSTRIAL RECOVERY ACT* CONSUMERS PAPER COMPANY, A CORPORATION, v. THE UNITED STATES [No. 44089. Decided October 6, 1941] On the Proofs Increased labor costs under National Industrial Recovery Act.-It is held that the record and testimony do not justify a finding of recoverable increased costs in connection with plaintiff's Contract No. 1 and that in connection with Contract No. 2, plaintiff is entitled to recover for increased labor costs after April 6, 1934. The Reporter's statement of the case: Mr. Ward H. Oehmann for the plaintiff. Messrs. Fred B. Rhodes, Cooper B. Rhodes, and Robert F. Klepinger were on the briefs. Mr. J. H. Reddy, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. The court made special findings of fact as follows: 1. The plaintiff during the times herein mentioned was a corporation organized and existing under the laws of the State of Michigan with its place of business in Detroit, Michigan. *See vol. 92, pp. xxili-xxix. 713 94 C. Cls. 2. March 27, 1933, the plaintiff entered into a contract with the defendant designated as Contract NOs-30878 to furnish and deliver to the Navy Department 700,000 pounds of wiping cloths. May 9, 1933, the plaintiff entered into a contract with the defendant designated as Contract NOS-31313 to furnish and deliver to the Navy Department 300,000 pounds of wiping cloths. The contracts are plaintiff's exhibits 1 and 2, respectively. These exhibits and all other exhibits referred to are made a part hereof by reference. 3. Plaintiff was a manufacturer and part of the output of its plant was wiping cloths. The wiping cloths were manufactured out of selected old rags of a specified grade. 4. Plaintiff in this suit seeks reimbursement for increased costs, resulting from the enactment of the National Industrial Recovery Act, which costs were incurred during the period from August 31, 1933, to August 24, 1934, in carrying out the two contracts. 5. June 16, 1933, the National Industrial Recovery Act became law. August 22, 1933, the plaintiff signed the President's Reemployment Agreement, a copy of which is defendant's exhibit A. February 17, 1934, the President approved the Code of Fair Competition for the Wiping Cloth Industry, a copy of which is defendant's exhibit B. This code went into effect February 26, 1934. 6. About September 1, 1933, plaintiff made some readjustments in the hours of labor per week and in the rates of pay per hour of its employees, but a weekly average of more than 68% of plaintiff's employees were worked in excess of 40 hours per week during the entire period from August 25, 1933, to April 6, 1934. From August 31, 1933, to April 6, 1934, some of plaintiff's employees received less pay per hour than the minimum provided in the President's Reemployment Agreement. About April 6, 1934, plaintiff made certain other readjustments in the number of hours per week and in the rates of pay per hour of its employees in an effort to comply with the Wiping Cloth Industry Code. 94 C. Cls. From April 6, 1934, to August 24, 1934, plaintiff's employees received the minimum pay per hour provided in the Wiping Cloth Industry Code; plaintiff also complied substantially with the hours provision of the Code. 7. Plaintiff's records do not show the number of employees, or the number of hours worked by them upon the two contracts as distinguished from other like work going through plaintiff's manufacturing plant either prior to or subsequent to the enactment of the National Industrial Recovery Act. Plaintiff's claim for increased costs of raw material, manufacturing, and labor is computed by comparing the average cost per pound for such items prior to the enactment of the National Industrial Recovery Act with the average cost per pound subsequent thereto. 8. Attorneys for plaintiff and defendant entered into a stipulation to the effect that plaintiff's auditor should file for record a supplemental audit showing the additional labor and manufacturing costs incurred during the period covered by the deliveries that are involved in this suit. It was further stipulated that defendant's auditor should file a supplemental schedule showing the labor costs commencing with the month of August 1932 and continuing through the month of July 1933. The method of arriving at such costs was agreed upon. Such schedules were duly filed. (Plaintiff's exhibits 8 and 9, defendant's exhibit E.) 9. Between April 6, 1934, and August 24, 1934, plaintiff made the following shipments to the defendant of wiping cloths on its contract NOs-31313, dated May 9, 1933, to wit: The increased costs of raw material and labor to produce these shipments of wiping cloths of 90,375 pounds were as follows: Raw material Labor____. Total_ $724.90 545. 22 1,270. 12 |