The proposition that a seller who has collected from his vendees but has not paid to the government taxes imposed under an unconstitutional statute is unjustly enriched, and the correlative principle that a taxpayer has no right to recover invalid taxes paid by him if he has shifted the burden of such taxes to others, are embodied in title II and title VII, respectively, of the Revenue Act of 1936. Title VII prohibits refunds to processors and other vendors of amounts collected from them as tax under the Agricultural Adjustment Act unless the claimant can establish that he bore the burden of the amount and has not been reimbursed therefor nor shifted the burden to others. Title III imposes an eighty per cent tax on net income derived from shifting the burden of federal excise taxes, where no tax has been paid or where the amount of the tax paid has been refunded. While this tax on unjust enrichment, popularly known as the "windfall tax," applies in terms to all federal excise taxes, it is primarily intended to prevent a windfall to processors who had added the amount of the processing tax to the prices charged buyers but who themselves either had not paid such taxes before the invalidation of the A.A.A. or had recovered such sums impounded in court after the Supreme Court's decision holding illegal the processing tax provisions of the act. Thus, the two titles are complementary and tend to equalize the positions of all processing taxpayers who "passed on" the tax to customers. Since title III provides that if the vendor reimburses his vendee, after having passed the tax on to him, the latter will be taxed on his reimbursements to the extent that he in turn shifted the burden to his vendee, the avowed purpose of Congress to "tap the windfall in its every retreat" is clear.
Keith P. Bondurant,
THE WINDFALL TAX AND PROCESSING TAX REFUND PROVISIONS OF THE REVENUE ACT OF 1936,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol37/iss3/2