processed by the claimant from the commodity during such month, deduct the cost of the commodity processed during the month. The sum so ascertained shall be divided by the number of units of the commodity processed during such month, and the resulting figure shall be the margin for the month. (3) Ascertainment of average margin.—The average margin for each period shall be ascertained in the same manner as monthly margins under subdivisions (1) and (2), using total gross sales value, total cost of commodity processed, total processing tax paid, and total units of commodity processed, during such period. (4) Combination of commodities.-Where, as, for example, in the case of certain types of tobacco, the articles produced and sold by the claimant are the product of several commodities combined by him during processing, the average margin shall be established with respect to such commodities as a group, and not individually, in accordance with rules and regulations prescribed by the Commissioner, with the approval of the Secretary of the Treasury. (5) Cost of commodity. The cost of commodity processed during each month shall be (a) the actual cost of the commodity processed if the accounting procedure of the claimant is based thereon, or (b) the product computed by multiplying the quantity of the commodity processed by the current prices at the time of processing for commodities of like quality and grade in the markets where the claimant customarily makes his purchases. (6) Gross sales value of articles.-The gross sales value of articles shall mean (a) the total of the quantity of each article derived from the commodity processed by the claimant during each month multiplied by (b) the claimant's sale prices current at the time of processing for articles of similar grade and quality. (7) Quantity of article.-The quantity of each article derived from the commodity processed may be either (a) the actual quantity obtained, as shown by the records of the claimant, or (b) an estimated quantity computed by multiplying the quantity of commodity processed by appropriate conversion factors giving the quantity of articles customarily obtained from the processing of each unit of the commodity. (c) Tax period. The "tax period" shall mean the period with respect to which the claimant actually paid the processing tax to a collector of internal revenue and shall end on the date with respect to which the last payment was made. The "period before and after the tax" shall mean the twenty-four months (except that in the case of tobacco it shall be the twelve months) immediately preceding the effective date of the processing tax, and the six months, February to July, 1936, inclusive. If during any part of such period the claimant was not in business, or if his records for any part of such period are so inadequate as not to provide satisfactory data on prices paid for commodities purchased or prices received for articles sold, the average prices paid or received by representative concerns engaged in a similar business and similarly circumstanced may with the approval of the Commissioner, where necessary for a fair comparison, be substituted 650673°-46-26 in making the necessary computations. If the claimant was not in business during the entire period before and after the tax, the average margin, during such period, of representative concerns engaged in a similar business and similarly circumstanced, as determined by the Commissioner, shall be used as his average margin for such period. (d) Purchase or sale price, determination. If the claimant made any purchase or sale otherwise than through an arm'slength transaction, and at a price other than the fair market price, the Commissioner may determine the purchase or sale price to be that for which such purchases or sales were at that time made in the ordinary course of trade. (e) Rebuttal of presumption as to tax burden.-Either the claimant or the Commissioner may rebut the presumption established by subsection (a) of this section by proof of the actual extent to which the claimant shifted to others the burden of the processing tax. Such proof may include, but shall not be limited to (1) Proof that the difference or lack of difference between the average margin for the tax period and the average margin for the period before and after the tax was due to changes in factors other than the tax. Such factors shall include any clearly shown change (A) in the type or grade of article or commodity, or (B) in costs of production. If the claimant asserts that the burden of the tax was borne by him and the burden of any other increased costs was shifted to others, the Commissioner shall determine from the effective dates of the imposition or termination of the tax and the effective date of other changes in costs as compared with the date of the changes in margin (when margins are computed for weeks, months, or other intervals between July 1, 1931, and August, 1936, in the manner specified in subsection (b)), and from the general experience of the industry, whether the tax or the increase in other costs was shifted to others. If the Commissioner determines that the difference in average margin was due in part to the tax and in part to the increase in other costs, he shall apportion the change in margin between them; (2) Proof that the claimant modified existing contracts of sale, or adopted a new form of contract of sale, to reflect the initiation, termination, or change in amount of the processing tax, or at any such time changed the sale price of the article (including the effect of a change in size, package, discount terms, or any other merchandising practice) by substantially the amount of the tax or change therein, or at any time billed the tax as a separate item to any vendee, or indicated by any writing that the sale price included the amount of the tax, or contracted to refund any part of the sale price in the event of recovery of the tax or decision of its invalidity; but the claimant may establish that such acts were caused by factors other than the processing tax, or that they do not represent his practice at other times. If the claimant processed any product in addition to the commodity with respect to the processing of which there was paid or collected an amount as tax for which he claims a refund, and if the Commissioner has reason to believe that the burden of such amount was shifted in whole or in part by means of the transactions relating to such product, the average margin with respect to such product, and articles processed therefrom, shall also be considered, and shall be determined for the tax period applicable to the commodity and for the period before and after the tax in the manner prescribed in subsection (b) of this section. To the extent the Commissioner determines that the average margin with respect to such product was higher during the tax period than it was during the period before and after the tax, it shall be prima-facie evidence that such amount was not borne by the claimant but that it was shifted to others. (June 22, 1936, 9:00 p. m., ch. 690, § 907, 49 Stat. 1751.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 650. Limitations on allowance of claims and interest.—(a) No claim shall be allowed under sections 644-659 of this title in an amount less than $10. (b) No interest shall be allowed by the Commissioner or by any court with respect to any amount paid or collected as tax under sections 601-608, 608a-608c, 608d-612, 613-619, 620, 623, 624 of this title, except with respect to amounts, refund of which is made or allowed under sections 644-659 of this title. (June 22, 1932, 9:00 p. m., ch. 690, § 908, 49 Stat. 1753.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 651. Limitations on review. In the absence of fraud or mistake in mathematical calculation, the findings of fact and conclusions of law of the Commissioner upon the merits of any claim presented under sections 644-659 of this title shall not be subject to review by any other administrative or accounting officer, employee, or agent of the United States. (June 22, 1936, 9:00 p. m., ch. 690, § 909, 49 Stat. 1753.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 652. Liability of collectors.-No collector of internal revenue or customs, or internal revenue or customs officer or employee, shall be in any way liable to any person for any act done by him. in the assessment or collection of any amount as tax under sections 601-608, 608a-608c, 608d-612, 613-619, 620, 623, 624 of this title, or for the recovery of any money exacted by or paid to him. and paid into the Treasury, in performance of his official duties under the provisions of such sections, or if such collector or officer acted under the direction of the Secretary or other proper officer of the Government. (June 22, 1936, 9:00 p. m., ch. 690, § 910, 49 Stat. 1753.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 653. Inapplicability to certain refunds. The provisions of sections 644-659 of this title shall not apply to any refund authorized under the provisions of sections 615, 616, or 617 of this title, or with respect to any articles exported under the provisions of section 1317 of Title 19. No refund shall be made or allowed of any amount paid or collected as tax under sections 601-608, 608a608b, 608c-612, 613-619, 620, 623, 624 of this title, to the extent that refund or credit with respect to such amount has been made to any person. (June 22, 1936, 9:00 p. m., ch. 690, § 911, 49 Stat. 1753.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 654. Period not extended. Any suit or proceeding with repect to any amount paid or collected as tax under sections 601608, 608a-608c, 608d-612, 613-619, 620, 623, 624 of this title which is barred on June 22, 1936, shall remain barred. No claim with respect to any such amount which is barred from allowance on June 22, 1936, shall hereafter be allowed in any amount. (June 22, 1936, 9:00 p. m., ch. 690, § 912, 49 Stat. 1754.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 655. Definitions.-When used in section 644-659 of this title (a) The term "tax" means a tax or exaction denominated a "tax" under sections 601-608, 608a-608c, 608d-612, 613-619, 620, 623, 624 of this title, and shall include any penalty, addition to tax, additional tax, or interest applicable to such tax. (b) The term "processing tax" means any tax or exaction denominated a "processing tax" under sections 601-608, 608a-608c, 608d-612, 613-619, 620, 623, 624 of this title, but shall not include any amount paid or collected as tax with respect to the processing of a commodity for a customer for a charge or fee. (c) The term "commodity" means any commodity, prior to processing, of a type with respect to the processing of which a processing tax was imposed under sections 601-608, 608a-608c, 608d-612, 613-619, 620, 623, 624 of this title. (d) The term "article" means the product which is obtained by processing a commodity, and includes the product obtained by further manufacture or by combination with other materials. (e) The term "refund" includes any recovery, recoupment, setoff, credit, or counterclaim. (f) The term "Agricultural Adjustment Act" means the Agricultural Adjustment Act as originally enacted and the amendments thereto adopted prior to January 6, 1936. (June 22, 1936, 9:00 p. m., ch. 690, § 913, 49 Stat. 1754.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 656. Authority of Commissioner.-In connection with the establishment of the facts required to be established under sec tions 644-659 of this title, the Commissioner of Internal Revenue is hereby authorized, by any officer or employee of the Treasury Department and of the Bureau of Internal Revenue, including the field service, designated by him for that purpose, to examine any books, papers, records, or memoranda which are relevant and material in connection with any claim made pursuant to sections 644-659 of this title, to require the attendance of the claimant or of any officer or employee of the claimant, or the attendance of any other person having knowledge in the premises, and to take, or cause to be taken, his testimony with reference to any such matter, with power to administer oaths to such person or persons. It shall be lawful for the Commissioner, or any person designated by him, to summon witnesses to appear before the Commissioner, or before any person designated by him, at a time and place named in the summons, and to produce such books, papers, correspondence, memoranda, or other records as the Commissioner may deem relevant or material, and to give testimony or answer interrogatories, under oath, relating to any claim made pursuant to sections 644-659 of this title. The provisions of section 3615 (d) and (e) of Title 26 shall be applicable with respect to any summons issued pursuant to the provisions of sections 644-659 of this title. Any witness summoned under sections 644-659 of this title shall be paid the same fees and mileage as are paid witnesses in the courts of the United States. All information obtained by the Commissioner pursuant to this section shall be available to the Secretary of Agriculture upon written request therefor. Such information shall be kept confidential by all officers and employees of the Department of Agriculture, and any such officer or employee who violates this requirement shall, upon conviction, be subject to a fine of not more than $1,000 or to imprisonment for not more than one year, or both, and shall be removed from office. (June 22, 1936,. 9:00 p. m., ch. 690, § 914, 49 Stat. 1754.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 658. Rules and regulations.-The Commissioner shall, with the approval of the Secretary, prescribe such rules and regulations as may be deemed necessary to carry out the provisions of sections 644-659 of this title. (June 22, 1936, 9:00 p. m., ch. 690, § 916, 49 Stat. 1755.) CROSS REFERENCE Appropriations for refunds, etc., see note preceding section 641 of this title. § 659. Personnel. (a) The Secretary of the Treasury may appoint such officers, attorneys, economists, and other experts without regard to section 661-663, 664, 673, 674 of Title 5, and without regard to the civil-service laws or regulations, as are necessary to execute the functions vested in him and the Commissioner of Internal Revenue by sections 644-659 of this title. No compensation at a rate in excess of $8,500 per annum shall be paid to any such appointee. |