BRYAN, Circuit Judge.
This is a suit by the state of Alabama to collect excise taxes upon the sales of gasoline and other petroleum products by the Pan American Petroleum Corporation to post exchanges at Camp McClellan and Maxwell Field, located in Alabama, but situated on United States government reservations. These petroleum products were shipped into Alabama from other states, stored by the Pan American in bulk plants at Anniston and Montgomery, Ala., and afterwards sold therefrom by it and delivered to the post exchanges. We need consider only the tax in respect of sales of gasoline, for it is admitted that if it is collectible, the tax on sales of the other petroleum products is likewise collectible. The suit was defended upon the grounds, among others, (1) that the tax did not accrue because the gasoline was sold for use at post exchanges on military reservations, the idea being that they are not in the state of Alabama; and (2) that a post exchange is a department of the United States government, and therefore sales made to it are exempt from the tax. Other grounds of objection to the tax were also urged, but in the view we take of the case it is unnecessary to consider them. The case was tried upon an agreed statement of facts before the district judge, who gave judgment for the state; and the defendant appeals.
The pertinent part of the taxing statute reads as follows: "Every distributor, retail dealer or storer of gasoline as herein defined shall pay an excise tax of two [now four] cents per gallon upon the selling, distributing or withdrawing from storage for any use gasoline as herein defined in this
It is to be conceded that an excise tax on the sales of gasoline is inoperative as to sales made to the United States, either directly, or indirectly through one of its departments, for government use. Panhandle Oil Co. v. State of Mississippi, 277 U.S. 218, 48 S.Ct. 451, 72 L. Ed. 857, 56 A. L. R. 583. There a sale of gasoline was made direct to the United States for the use of the coast guard and a government hospital. No doubt the ruling would have been the same if the sales had been made directly to these instrumentalities of the government, for then also the United States would have been the real purchaser. But the tax here is not on the sale but is on the withdrawal of the gasoline. Furthermore, a post exchange is, of course, not the government; nor is it a department or instrumentality thereof. On the contrary, a post exchange is a voluntary, unincorporated, co-operative association of army organizations in which all share as partners in the profits and losses. The government has no share in the profits, and is not bound by the losses. We are therefore of opinion that sales made by appellant to the post exchanges at Camp McClellan and Maxwell Field are not exempt from the state excise taxes. People v. Standard Oil Co. (Cal. Sup.) 22 P.2d 2.
The judgment is affirmed.