decided writ of certiorari denied dec. 11 1950.: June 26, 1950.
Before SWAN, AUGUSTUS N. HAND and CHASE, Circuit Judges.
Universal Carloading & Distributing Company, Inc., hereafter called Universal, is a Delaware corporation engaged in the business of freight forwarding as now defined in Part IV of the Interstate Commerce Act, 49 U.S.C.A. § 1001 et seq. For the period from July 1, 1939 to December 31, 1946 taxes were collected from Universal under the Carriers Taxing Act of 1937.*fn1 It contended that it was properly taxable under the Federal Insurance Contributions Act, and filed claims for refund of the amounts by which the taxes collected under the first named Act exceeded the taxes payable under the latter Act.*fn2 Such claims having been rejected, Universal brought the present actions against the Collector of Internal Revenue. After his death his administratrix was substituted as defendant. A labor union and two of its officers were alllowed to intervene as defendants.*fn3 The actions were consolidated and tried before Judge Leibell without a jury. From a judgment dismissing the complaints on the merits the plaintiff has appealed.
This appeal presents the question whether the appellant was taxable under the Railroad Retirement Tax Act rather than under the Federal Insurance Contributions Act. Decision turns on whether Universal is an "employer" as defined in 26 U.S.C.A. § 1532(a), printed below.*fn4 This in turn raises two subsidiary questions: (1) whether Universal was controlled by New York Central Railroad Company, and (2) whether Universal performed "any service" of the kind described in the statutory definition. The parties have treated these two questions in inverse order, as did the district judge in his opinion.
Judge Leibell has written so complete and thorough an opinion, supporting his conclusions with reasoning so convincing, that little can be said which is not repetitious. However, the appellants have argued for reversal with such earnestness and at such length that some discussion by us seems desirable.
Three cognate statutes enacted for the benefit of railraod employees contain an identical definition of "employer"*fn5 and subject the employer to their respective provisions. Obviously the identical definition in these related Acts should be identically construed and applied. See Despatch Shops v. Railroad Retirement Board, 2 Cir., 154 F.2d 417, 418. The definition of "employer" in the Railroad Retirement Act and the Railroad Unemployment Insurance Act came before the Supreme Court in Railroad Retirement Board v. Duquesne Warehouse Company, 326 U.S. 446, 66 S. Ct. 238, 90 L. Ed. 192.That case involved a railroad-controlled warehouse company which loaded and unloaded for shippers carload freight transported by a railroad whose applicable tariff required the shipper to perform such services. The Supreme Court said that the question is "whether a carrier's affiliate is performing a service that could be performed by the carrier and charged for under the line-haul tariffs", 326 U.S. at page 454, 66 S. Ct. at page 242; it held that the loading and unloading services performed by Duquesne are services performed "'in connection with the transportation of * * * property by railroad'" and therefore are within the coverage of the statutory definition. Assuming for the moment that Universal was railroad-controlled, we think, as did Judge Leibell, that the Duquesne case leads inescapably to the conclusion that the services performed by Universal are within the coverage of the Railroad Retirement Tax Act. Indeed, the case is stronger than Duquesne's for in addition to loading and unloading Universal performs many other services which could be performed by railroads in connection with the transportation of property and for which the railroad could make a charge.*fn6 Universal has presented an elaborate and lengthy argument to prove that the legislative history of the Tax Act reveals that it was never intended to apply to freight forwarders, whether railroad controlled or independently owned. We do not find the legislative history persuasive of such intent, but in any event the fact that a similar argument did not prevail in the Duquesne case would preclude its acceptance in the case at bar.
In Universal Carloading & Distributing Co. v. Railroad Retirement Board, 84 U.S.App.D.C. 188, 172 F.2d 22, the question was presented whether the present appellant came within the definition of "employer" in the Railroad Unemployment Insurance Act. The Court of Appeals held, in reliance on the Duquesne case, that the type of services performed by Universal brought it within the coverage of the statutory definition. We agree with that conclusion.
The Court of Appeals discussed at length the question of the control of Universal by New York Central and held that the pre-existing control was not ended by the Trust Indenture of June 15, 1939. Judge Leibell also discussed this question, independently reached the same conclusion, and followed the decision of the Court of Appeals on the principle of stare decisis. We agree with his discussion and have nothing to add.