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David Berger, 1622 Locust St., Philadelphia, Pa. 19103, for plaintiff. David W. Marston, United States Attorney, C. Oliver Burt, III, Assistant United States Attorney, Philadelphia, Pa., for defendant.

The story begins on September 1, 1972, when the taxpayer/1/ was about to embark on a flight from the Philadelphia International Airport to Los Angeles, California. Because she fit the "profile"/2/ of a potential hijacker, she was detained by Customs Agents who, with her consent, searched her baggage./3/ It was discovered that one of the smaller pieces of luggage "was completely filled with stacks of money" which, when counted, totalled $40,055.00. Asked the source of the money, the taxpayer explained that she earned the money as a prostitute during the summer months at a New Jersey seashore resort. She stated she earned the money at the rate of $100.00 per date.

While she was detained, the Internal Revenue Service was notified and a computer check disclosed that she had not paid income taxes for the years 1969, 1970 and 1971. Consequently, on September 6, 1972, the $40,055.00 was levied on after a jeopardy assessment was made pursuant to Section 6861, Internal Revenue Code of 1954 for the years 1969, 1970 and 1971./4/ The taxpayer was given a receipt for the payment of taxes in the amount of $40,055.00.

On April 26, 1974, the taxpayer filed From 1040--Individual Income Tax Returns for the periods ending December 31, 1969, December 31, 1970, December 31, 1971 and December 31, 1972. The taxpayer reported no income for the years 1969, 1970 and 1971, but on her 1972 return she reported income in the amount of $41,000.00 and claimed a refund in the amount of $31,729.67, being the difference between the income and self-employment taxes due on $41,000.00 and the $40,055.00 which had been seized by the Government.

When her claim for refund was not acted upon within six months, she instituted the present suit.

The Court accepted the 1972 return at face value and found that she had income that year of $41,000.00. The Court also found, based on her testimony, that the taxpayer earned $4,075.00 in 1969, $8,100.00 in 1970 and $3,625.00 in 1971.

However, during the course of the discovery proceedings prior to trial, the plaintiff testified that the $40,055.00 seized at the airport did not belong to her but belonged to a person named Joe, whose last name was unknown, and that she was merely transporting it to California. This development was reflected in an amended complaint in which she alleged that she was carrying the money as a bailee. She repeated the substance of her deposition at trial. Thus, it is undisputed that the funds seized by the Internal Revenue Service through attachment did not belong to the taxpayer but were in her possession in her capacity as a courier. It also developed at trial that the taxpayer has not seen nor heard from "Joe" since the seizure.

Relying on Section 6402(a) of the Internal Revenue Code, the Government contends that a refund can be claimed only by the person who made the payment, and, argues the Government, since it was "Joe's" money which was used to pay the taxes, the Court has no authority to grant a refund to the plaintiff.

Plaintiff, on the other hand, takes the position that regardless of the source of the funds, she was the person who made the payment and therefore she is entitled to the refund.

The standing vel non of plaintiff to obtain a refund of the tax overpayment rests upon an interpretation of 26 USCA Section 6402(a), which states in pertinent part:

     "In the case of any overpayment, the Secretary ... may

     "The mere fact that the funds came from Abner, Wolfe, Inc.

The Government cites Griffin v. United States, No. 5-72139 (E. D. Mich. 19 July 1976) (unreported memorandum opinion), for the proposition that a refund claimant must show ownership of the sum levied upon. In Griffin, money allegedly belonging to plaintiffs was seized in a home owned by them but occupied by their son. In denying the refund, the Court held that plaintiffs had failed to establish any claim whatsoever to the funds--not even a right of possession. Viewed in this light, Scanlon supports the plaintiff's position.

Similarly inapposite here is McCune v. United States, (C. D. Calif. 6 June 1975), wherein it was held that a taxpayer cannot maintain a refund suit for taxes which were neither assessed against him nor paid by him.

It is my conclusion that Section 6402(a) does not bar a taxpayer from obtaining a refund even though the overpayment of taxes was made with funds in her possession as a bailee.

Accepting plaintiff's figures, I find that she earned $4,000.00 in 1969, $8,000.00 in 1970, $3,500.00 in 1971, and $41,000.00 in 1972. Accordingly, judgment is entered for defendant and against plaintiff on the counterclaim for taxes, penalties, and interest in the amount of $14,343.44. This amount is to be offset against the sum seized from plaintiff on September 5, 1972, and judgment is entered for plaintiff and against defendant for a refund of tax overpayment and interest in the amount of $34,828.88. Defendant shall further refund to plaintiff the sum of $712.91, which represents overpayments by plaintiff on her 1973, 1974, and 1975 taxes, plus interest thereon. Judgment is therefore entered for plaintiff in the amount of $35,541.79.

ORDERED that JUDGMENT be entered in favor of the Plaintiff and against the Defendant in the amount of $35,541.79.

² Defined in United States v. Davis, 482 F.2d 893, 898 as "objective characteristics to identify potential hijackers."

³ As noted by the Court in United States v. Davis, supra at 901: "On August 1, 1972, the F. A. A. issued a directive that no airline `shall permit any person' meeting the profile to board a plane unless his carry-on baggage had been searched and he had been cleared through a metal detector or had submitted to a `consent search' prior to boarding." (footnote omitted).

⁴ The Revenue Agent calculated the income by estimating that she had two dates per day at $100.00 per date, three weeks per month, twelve months per year--less, of course, appropriate expenses for a hotel room.