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IRWIN v. UNITED STATES

No. 75-3197.

558 F.2d 249 (1977)

Ellis C. IRWIN, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

Rehearing Denied October 5, 1977.

Attorney(s) appearing for the Case

Gerald J. Gallinghouse, U.S. Atty., New Orleans, La., Scott P. Crampton, Asst. Atty. Gen., Tax Div., U.S. Dept. of Justice, Washington, D.C., Gilbert E. Andrews, Jr., Acting Chief, Appellate Sec., Wm. A. Friedlander, George G. Wolf, William S. Estabrook, III, Atty., Tax Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

Harry Nowalsky, John D. Lambert, New Orleans, La., for plaintiff-appellee.

Before MORGAN and RONEY, Circuit Judges, and KING, District Judge.

MORGAN, Circuit Judge:

The question for decision in this case is whether the district court erred in granting taxpayer's motion for summary judgment in taxpayer's suit for refund of taxes paid under protest. The specific issue on appeal is whether material facts are in genuine dispute thereby rendering summary judgment improper. Because the case involves a question of the state of mind of the taxpayer, material facts do remain in dispute

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