No. 223, Docket 73-1813.

485 F.2d 1237 (1973)

ALLIED BITUMENS, INC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

United States Court of Appeals, Second Circuit.

Decided November 2, 1973.

Attorney(s) appearing for the Case

Louis A. Bradbury, Atty., Tax Div., Dept. of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Elmer J. Kelsey, Attys., John T. Elfvin, U. S. Atty., for the Western District of New York, on the brief), for defendant-appellant.

Thomas J. Fori, Albany, N. Y. (Harry R. Hayes, Albany, N. Y., on the brief), for plaintiff-appellee.

Before SMITH, FEINBERG and OAKES, Circuit Judges.


The United States appeals from a judgment of $13,192.89 with interest for plaintiff taxpayer Allied Bitumens, Inc. after a trial in a tax refund suit in the United States District Court for the Western District of New York, before Judge John T. Curtin. The judge held that the asphalt distributors and slurry machines used by taxpayer in road construction and repair were not "highway motor vehicles" within 26 U.S.C. § 4482(a) so as to be subject to...

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