United States Sixth Circuit

In plaintiff's suit for a refund of $119,302 in heavy-truck excise taxes it paid the IRS for the first quarter of 2004, related to the sale of certain models of coal-hauler dump trucks, grant of defendant-government's motion for summary judgment on plaintiff's claim and on its counterclaim of $1,149,140 in excise taxes claimed to be due for the period from 1999 to early 2003 is vacated and remanded as the government was not entitled to summary judgment on the basis of its argument that the truck model's primary function was dual use, as evidence submitted by plaintiff supports that, by design, the model's primary function is to haul coal off-highway.

Appellate Information

• Argued 04/29/2009
• Decided 05/17/2010
• Published 05/17/2010

Judges

• Before: MERRITT, COOK, and WHITE, Circuit Judges.

Court

• United States Sixth Circuit

Counsel

• For Appellees:
  
• ARGUED:James E. Burke, Jr., Keating, Muething & Klekamp, Cincinnati, Ohio, for Appellant. Bethany B. Hauser, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:James E. Burke, Jr., Sue A. Erhart, Brenna L. Penrose, Keating, Muething & Klekamp, Cincinnati, Ohio, for Appellant. Bethany B. Hauser, Richard Farber, United States Department of Justice, Washington, D.C., for Appellee. Richard H.C. Clay, Dinsmore & Shohl, Louisville, Kentucky, Emily Fritts Whitty, Morris & Player, Louisville, Kentucky, Mark H. Sidman, Rose-Michele Nardi, Sandra B. Vipond, Weiner, Brodsky, Sidman & Kider, Washington, D.C., for Amici Curiae.