624 of this title, unless the claimant establishes to the satisfaction of the Commissioner in accordance with regulations prescribed by him, with the approval of the Secretary, or to the satisfaction of the trial court, or the Board of Tax Appeals (hereinafter referred to as the "Board") in cases provided for under section 648 of this title, as the case may be (a) That he bore the burden of such amount and has not been relieved thereof nor reimbursed therefor nor shifted such burden, directly or indirectly, (1) through inclusion of such amount by the claimant, or by any person directly or indirectly under his control, or having control over him, or subject to the same common control, in the price of any article with respect to which a tax was imposed under the provisions of sections 601-608, 608a608c, 608d-612, 613-619, 620, 623, 624 of this title, or in the price of any article processed from any commodity with respect to which a tax was imposed under said sections, or in any charge or fee for services or processing; (2) through reduction of the price paid for any such commodity; or (3) in any manner whatsoever; and that no understanding or agreement written or oral, exists whereby he may be relieved of the burden of such amount, be reimbursed therefor, or may shift the burden thereof; or (b) That he has repaid unconditionally such amount to his vendee (1) who bore the burden thereof, (2) who has not been relieved thereof nor reimbursed therefor, nor shifted such burden, directly or indirectly, and (3) who is not entitled to receive any reimbursement therefor from any other source, or to be relieved of such burden in any manner whatsoever. (June 22, 1936, 9:00 p. m., ch. 690, § 902, 49 Stat. 1747; Oct. 21, 1942, ch. 619, title V, § 510 (e), 56 Stat. 968.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 645. Filing of claims.-No refund shall be made or allowed of any amount paid by or collected from any person as tax under sections 601-608, 608a-608c, 608d-612, 613-619, 620, 623, 624 of this title unless, after June 22, 1936, and prior to January 1, 1940, a claim for refund has been filed by such person in accordance with regulations prescribed by the Commissioner with the approval of the Secretary. All evidence relied upon in support of such claim shall be clearly set forth under oath. The Commissioner is authorized to prescribe by regulations, with the approval of the Secretary, the number of claims which may be filed by any person with respect to the total amount paid by or collected from such person as tax under sections 601-608, 608a-608c, 608d612, 613-619, 620, 623, 624 of this title, and such regulations may require that claims for refund of processing taxes with respect to any commodity or group of commodities shall cover the entire period during which such person paid such processing taxes. (June 22, 1936, 9:00 p. m., ch. 690, § 903, 49 Stat. 1747; June 29, 1939, 10 p. m. E. S. T., ch. 247, title IV, § 405, 53 Stat. 884.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 646. Statute of limitations.-Notwithstanding any other provision of law, no suit or proceeding, whether brought before or after June 22, 1936, shall be brought or maintained in any court for the recovery, recoupment, set-off, refund, or credit of, or counterclaim for, any amount paid by or collected from any person as tax (except processing tax, as defined herein) under sections 601-608, 608a-608c, 608d-612, 613-619, 620, 623, 624 of this title (a) before the expiration of eighteen months from the date of filing a claim therefor under section 645 of this title, unless the Commissioner renders a decision thereon within that time, or (b) after the expiration of two years from the date of mailing by registered mail by the Commissioner to the claimant a notice of disallowance of that part of the claim to which such suit or proceeding relates. Any consideration or any action by the Commissioner with respect to such claim following the mailing of notice of disallowance shall not operate to extend the period within which any suit or proceeding may be brought. (June 22, 1936, 9:00 p. m., ch. 690, § 904, 49 Stat. 1747.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 647. Jurisdiction of courts.-Concurrent with the Court of Claims, the District Courts of the United States (except as provided in section 648 of this title) shall have jurisdiction of cases to which sections 644-659 of this title apply, regardless of the amount in controversy, if such district courts would have had jurisdiction of such cases but for limitations under the Judicial Code, as amended, Title 28, Judicial Code and Judiciary, on jurisdiction of such courts based upon the amount in controversy. The United States Customs Court shall not have jurisdiction of any such cases. (June 22, 1936, 9:00 p. m., ch. 690, § 905, 49 Stat. 1748.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 648. Procedure on claims for refunds of processing taxes.— (a) Notwithstanding any other provision of law, no suit or proceeding, whether brought before or after June 22, 1936, shall be brought or maintained in any court for the refund of any amount paid or collected as processing tax, as defined in section 655 of this title, under sections 601-608, 608a-608c, 608d-612, 613-619, 620, 623, 624 of this title, except as provided in this section. The Commissioner shall allow or disallow, in whole or in part, any claim for refund of any such amount within three years after such claim was filed, unless such time has been extended by written. consent of the claimant. (b) The Board shall have jurisdiction in proceedings under this section to review the allowance or disallowance of the Commissioner of a claim for refund, and to determine the amount of refund due any claimant with respect to such claim. The Commissioner shall make refund of any such amount determined by a decision of the Board which has become final. (c) The allowance or disallowance of the Commissioner of a claim for refund under this section shall be final, unless within ninety days (not counting Sunday or a legal holiday in the District of Columbia as the ninetieth day) after the date of mailing by registered mail by the Commissioner of notice that a claim for refund of any such amount has been disallowed, in whole or in part, the claimant files a petition with the Board requesting a hearing on the merits of his claim, in whole or in part. Upon the filing of any such petition the claimant shall be entitled to a hearing as provided herein. Notice and opportunity to be heard shall be given to the claimant and the Commissioner. If the notice is addressed to a person outside the States of the Union and the District of Columbia, the period specified in this subsection shall be one hundred and fifty days in lieu of ninety days. (d) Each such hearing shall be conducted by a division of the Board and shall be open to the public. The proceedings in such hearings shall be conducted in accordance with such rules of practice and procedure (other than rules of evidence) as the Board may prescribe, and in accordance with the rules of evidence applicable in courts of equity of the District of Columbia. The claimant and the Commissioner shall be entitled to be represented by counsel, to have witnesses subpenaed, and to examine and cross-examine witnesses. The division shall have authority to administer oaths, examine witnesses, rule on questions of procedure and the admissibility of evidence, and to require by subpena, signed by any member of the Board, the attendance and testimony of witnesses, and the production of all necessary returns, books, papers, records, correspondence, memoranda, and other evidence, from any place in the United States at any designated place of hearing, and to require the taking of a deposition by any designated individual competent to administer oaths. Any witness summoned or whose deposition is taken pursuant to this section shall receive the same fees and mileage as witnesses in the courts of the United States. Such fees and mileage and the expenses of taking any such deposition shall be paid as follows: (1) Witnesses for Commissioner. In the case of witnesses for the Commissioner such payments shall be made by the Secretary out of any moneys appropriated for the collection of internalrevenue taxes, and may be made in advance. (2) Other witnesses. In the case of any other witnesses, such payments shall be made, subject to rules prescribed by the Board, by the party at whose instance the witness appears or the disposition is taken. (e) After the conclusion of the hearing a report and a decision thereon shall be made as quickly as practicable by the division conducting such hearing. The report of the division shall become the report of the Board within thirty days after such report by the division, unless within such period the chairman has directed that such report shall be reviewed by the Board. Any preliminary action by a division which does not form the basis for the entry of the final decision shall not be subject to review by the Board except in accordance with such rules as the Board may prescribe. The report of a division shall not be a part of the record in any case in which the chairman directs that such report shall be reviewed by the Board. It shall be the duty of the Board and of each division to include in its report upon any proceeding its findings of fact or opinion or memorandum opinion. The Board shall report in writing all its findings of fact, opinions, and memorandum opinions. A decision of the Board (except a decision dismissing a proceeding for lack of jurisdiction) shall be held to be rendered upon the date that an order specifying the amount of the refund, or that so refund is due, is entered in the records of the Board. If the Board dismisses a proceeding for lack of jurisdiction, an order to that effect shall be entered in the records of the Board and the decision of the Board shall be held to have been rendered upon the date of such entry. (f) The Board is authorized to fix a fee, not in excess of the fee fixed by law to be charged and collected therefor by the clerks of the district courts, for comparing, or for preparing and comparing, a transcript of the record, or for copying any record, entry, or other paper and the comparison and certification thereof. (g) A decision of the Board rendered after January 1, 1943, may be reviewed by a circuit court of appeals or the United States Court of Appeals for the District of Columbia, if a petition for such review is filed by either the claimant or the Commissioner within three months after the decision is rendered. Such decision may be reviewed by the circuit court of appeals for the circuit in which the claimant resides, or has his principal place of business, or, if none, by the United States Court of Appeals for the District of Columbia: Provided, however, that in any event such decision may be reviewed by any circuit court of appeals or the United States Court of Appeals for the District of Columbia which may be designated by the Commissioner and the claimant by stipulation in writing. Such courts shall have exclusive jurisdiction to affirm the decision of the Board, or to modify or reverse such decision, if it is not in accordance with law, with or without demanding the cause for a rehearing as justice may require. The judgments of such courts shall be final, subject to review by the Supreme Court of the United States upon certification or certiorari as provided in sections 346 and 347 of Title 28 as amended. Such courts are authorized to adopt rules for the filing of petitions for review, preparation of the record for review, and the conduct of the proceedings on review. A decision of the Board rendered after January 1, 1943 shall become final in the same manner that decisions of the Board become final under section 1140 of the Internal Revenue Code. (June 22, 1936, 9:00 p. m., ch. 690, § 906, 49 Stat. 1748; Oct. 21, 1942, 4:30 p. m., E. W. T., ch. 619, title V, § 510 (b), (f) (1), (g-j), 56 Stat. 967.) EFFECTIVE DATE The amendments to this section by act Oct. 21, 1942, cited to text, were made effective Jan. 1, 1943, by section 510 (1) thereof. TRANSFER OF FUNCTIONS Section 510 (a), (c) and (d) of act Oct. 21, 1942, cited to text, provided as follows: "(a) Effective as of the close of business on December 31, 1942, the Board of Review, established under section 906 (b) of the Revenue Act of 1936 (subsection (b) of this section), is hereby abolished and the jurisdiction vested in said Board of Review is hereby transferred to and vested in the Board of Tax Appeals. "(c) All proceedings pending in the said Board of Review on December 31, 1942, shall be deemed pending in and be transferred forthwith to the Board of Tax Appeals, and shall be proceeded with and disposed of by the Board of Tax Appeals as if originally begun therein. "(d) All journals, dockets, books, files, records, and property, including office equipment of the said Board of Review, shall be transferred to the Board of Tax Appeals." FILING OF PETITION Section 510 (f) (2) of act Oct. 21, 1942, cited to text, provided as follows: "(2) The amendment made by this subsection (to subsection (c) of this section), insofar as applicable to the date for filing the petition, shall not apply if the Commissioner has prior to January 1, 1943, mailed notice by registered mail that the claim for refund has been disallowed in whole or in part." SAVING CLAUSE Section 510 (k) of act Oct. 21, 1942, cited to text, provided as follows: "(k) Section 906 (g) of the Revenue Act of 1936 (subsection (g) of this section), as in effect prior to the date of enactment of the Revenue Act of 1942 (Oct. 21, 1942, 4:30 p. m., E. W. T.), shall remain in effect as to petitions to review decisions of the Board of Review rendered prior to January 1, 1943, but shall not, if any case involving any such petition is remanded for further proceedings in the Board of Tax Appeals, remain in effect with respect to any further proceedings in such case." § 649. Evidence and presumptions-(a) Tax burden, by whom borne. Where the refund claimed is for an amount paid or collected as processing tax, as defined herein, it shall be prima-facie evidence that the burden of such amount was borne by the claimant to the extent (not to exceed the amount of the tax) that the average margin per unit of the commodity processed was lower during the tax period than the average margin was during the period before and after the tax. If the average margin during the tax period was not lower, it shall be prima-facie evidence that none of the burden of such amount was borne by the claimant but that it was shifted to others. (b) Average margin for tax period; computation. The average margin for the tax period and the average margin for the period before and after the tax shall each be determined as follows: (1) Tax period. The average margin for the tax period shall be the average of the margins for all months (or portions of months) within the tax period. The margin for each such month shall be computed as follows: From the gross sales value of all articles processed by the claimant from the commodity during such month, deduct the cost of the commodity processed during the month and deduct the processing tax paid with respect thereto. The sum so ascertained shall be divided by the total number of units of the commodity processed during such month, and the resulting figure shall be the margin for the month. (2) Period before and after the tax.-The average margin for the period before and after the tax shall be the average of the margins for all months (or portions of months) within the period before and after the tax. The margin for each such month shall be computed as follows: From the gross sales value of all articles |