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BAYWAY REFINING CO. v. OXYGENATED MARKETING AND TRADING A.G.

No. 1075, Docket 99-7743.

215 F.3d 219 (2000)

BAYWAY REFINING COMPANY, Plaintiff-Appellee, Tosco Corporation, Plaintiff-Counter-Defendant-Appellee, v. OXYGENATED MARKETING AND TRADING A.G., Defendant-Counter-Claimant-Appellant.

United States Court of Appeals, Second Circuit.

Decided June 8, 2000.

Attorney(s) appearing for the Case

Jeffrey L. Dorrell, Houston, TX (Donald F. Mooney, C.W. Isley, New York, NY, on the brief), for Defendant-Appellant.

Curtis C. Mechling, Stroock & Stroock & Lavan LLP, New York, N.Y. (Lawrence D. Norden, Robyn Gemeiner, on the brief), for Plaintiff-Appellee.

Before: WINTER, Chief Judge, JACOBS and CALABRESI, Circuit Judges.

JACOBS, Circuit Judge:

Plaintiff-appellee Bayway Refining Company ("Bayway") paid federal excise tax on a petroleum transaction, as the Internal Revenue Code requires a petroleum dealer to do in a sale to a buyer who has not procured an exemption under the applicable tax provision. In this diversity suit against the buyer, Oxygenated Marketing and Trading A.G. ("OMT"), Bayway seeks to recover the amount of the tax it paid. One question in this "battle of the forms...

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