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RUPERTO ROBERTO v. UNITED STATES

March 30, 1973

Ruperto Roberto, t/a Caborrojeno Caterers, Plaintiff
v.
United States of America, Defendant


Levet, District Judge.


The opinion of the court was delivered by: LEVET

Opinion, Findings of Fact and Conclusions of Law

LEVET, District Judge:

 This is an action to recover $250.00 paid by plaintiff under protest in partial satisfaction of a cabaret excise tax assessment levied by the District Director of Internal Revenue in the amount of $164,741.77 for the calendar periods from July 1, 1958 through December 31, 1961. The United States counterclaims for the unpaid balance of the assessment, including penalties and interest in the amount of $164,491.77.

 The case was tried to the court on November 6, 1972.

 After hearing the testimony of the parties, examining the exhibits, the pleadings, the Proposed Findings of Fact and Conclusions of Law, this court makes the following Findings of Fact and Conclusions of Law:

 Findings of Fact

 1. This court has jurisdiction over the parties and the subject matter thereto. 2. On April 10, 1964 a federal cabaret tax assessment was made upon plaintiff by the District Director of Internal Revenue pursuant to Section 4231(6) of the Internal Revenue Code of 1954 in the amounts and for the periods as follows: July 1, 1958 through December 31, 1958 Tax $14,627.33 Penalty 3,656.84 Interest 4,664.66 $22,948.83 January 1, 1959 through December 31, 1959 Tax $39,079.07 Penalty 9,769.76 Interest 10,671.36 $59,520.19 January 1, 1960 through February 28, 1960 Tax $8,311.43 Penalty 2,077.85 Interest 1,967.40 $12,356.68 March 1, 1960 through December 31, 1960 Tax $25,150.48 Penalty 6,287.62 Interest 5,289.50 $36,727.60 January 1, 1961 through December 31, 1961 Tax $ 23,670.59 Penalty 5,917.65 Interest 3,600.23 433,188. 33,188.47 Total Tax Assessment $164,741.77

 3. On or about June 17, 1965 plaintiff paid the United States the sum of $250.00, representing a $50.00 payment for each assessment period. On April 21, 1966 plaintiff brought this suit for a refund of the $250.00 and defendant counterclaimed in the amount of $164,491.77. (Pretrial order.)

 4. From 1958 through 1961 plaintiff was doing business under the trade name of Caborrojeno Caterers with premises located at 3534 Broadway, New York, New York. The name "Club Caborrojeno" (sometimes referred to herein as the club) appeared on a large neon sign outside the establishment. 89, 106, 125; Ex. E, p. 7.) *fn1"

 5. The total floor area of the club is approximately 10,000 square feet. (119; Ex. 3.) The club's dance floor is approximately 1,862 square feet comprising approximately 19% of the total area of the club. (Ex. 3.) The club's bar and kitchen are approximately 837 square feet, comprising approximately 8% of the area of the club. (Ex. 3.)

 6. The total patron capacity of the club is between 350 and 450 persons. There are 121 tables at the club comprised of 103 tables seating four persons and 18 tables seating two persons, thus providing a total seating capacity for 448 persons. The club has a seating capacity at least equal to its total patron capacity, thus affording seating to all who are admitted. (120; Ex. 3.)

 7. In order to gain admission to the club a patron must purchase a ticket at a booth on the first floor landing leading to the club. The price of admission ranged from $2.00 to $3.00 per person. The admission price was higher for men than for women. The patron, upon gaining admission, could find his own seat and table or be escorted to one by either Ruperto Roberto or one of his former partners. (11, 12, 43, 89-92, 116; Ex. E, p. 18.)

 8. The Club Caborrojeno offered liquor, beer and soft-drink refreshments to its customers. The beverages were prepared at a bar which was 30 feet long and staffed by three or four bartenders. Liquor and beer were the most popular items. (111; Ex. E, p. 39.)

 9. Hot and cold food entrees were served. If a patron desired, he could purchase a cheese ensemble, ham or cheese sandwiches, hot french fried potatoes or a hot Spanish meat pie. (31, 94, 117; Ex. E, p. 25.) The food could be purchased directly at the bar by a patron or at the tables served by waiters. On a Friday, Saturday or Sunday night there would be between four and six waiters to wait on ...


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