United States v. Calamaro/Dissent Burton

Mr. Justice BURTON, dissenting.

For the reasons stated in Sagonias v. United States, 5 Cir., 223 F.2d 146, I believe that the respondent pickup man was 'engaged in receiving wagers for and on behalf' of the banker, within the meaning of §§ 3290 and 3291(a)(3), and therefore was required to pay the occupational tax and to register not only his name and place of residence, but that of the banker.

The language of § 3290 does not limit the occupational tax to persons 'accepting wagers' in a contractual sense. Instead, it imposes the tax on 'each person * *  * who is engaged in receiving wagers for or on behalf of any person so liable (for the excise tax).' Those words readily include a pickup man for he is engaged in receiving for the banker the slips which provide the banker with the sole evidence of the wagers made.

The legislative history contains specific references that indicate that the section was to apply to bookmakers' agents or runners. It shows that the occupational tax was enacted not only as a revenue measure on its own account, but as a measure to help enforce the much larger excise tax placed by § 3285 upon the principal operator of the gambling enterprise. To this end, § 3291(a)(1) and (3) requires each person who is subject to the occupational tax to register not only his own name and place of residence, but also that of the person for whom he is receiving wagers. Registration of the pickup man aids the Government in tracking these gambling operations to their headquarters and is essential to the enforcement of the excise tax. Since the 'receiving wagers' phrase in the registration provisions includes the pickup man, it must have the same meaning in the identical provisions imposing the occupational tax.

Furthermore, the administrative interpretation of § 3290 is significant. Since the enactment of the section in 1951, there has been in effect the following explanation of its scope in Treasury Regulations 132:

'Example (2). B operates a numbers game. He has an     arrangement with ten persons, who are employed in various      capacities, such as bootblacks, elevator operators, news      dealers, etc., to receive wagers from the public on his      behalf. B also employs a person to collect from his agents     the wagers received on his behalf.

'B, his ten agents, and the employee who collects the wagers     received on his behalf are each liable for the special tax.'      (Emphasis supplied.) 26 CFR, 1957 Cum. Pocket Supp., §     325.41.

This regulation should not be disregarded unless shown to be plainly inconsistent with the statute. Commissioner of Internal Revenue v. Wheeler, 324 U.S. 542, 547, 65 S.Ct. 799, 802, 89 L.Ed. 1166; Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct. 115, 117, 74 L.Ed. 457. Moreover, Congress re-enacted § 3290 in 1954 as 26 U.S.C. (Supp. II) § 4411, 26 U.S.C.A. § 4411. It thus impliedly accepted this established interpretation of the scope of the section. Corn Products Refining Co. v. Commissioner of Internal Revenue, 350 U.S. 46, 53, 76 S.Ct. 20, 24, 100 L.Ed. 29; Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46, 83 L.Ed. 52.