209 F.2d 347

54-1 USTC P 9164

UNITED STATES. v. ZSCHACH CONST. CO. et al.

No. 4714.

United States Court of Appeals, Tenth Circuit.

Jan. 11, 1954.

S. Dee Hanson, Washington, D.C. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, A. F. Prescott, and Dudley J. Godfrey, Jr., Spec. Assts. to the Atty. Gen., and Frank D. McSherry, U.S. Atty., Muskogee, Okl., were with him on the brief), for the United States.

Remington Rogers, Tulsa, Okl., and Maurice M. Thomas, Oklahoma City, Okl. (Ned Looney and Clyde J. Watts, Oklahoma City, Okl., were with them on the brief), for appellees.

Before HUXMAN, MURRAH, and PICKETT, Circuit Judges.

PER CURIAM.

This appeal involves withholding and employment tax liability for the years 1948 and 1949.

The question is whether the court erred in failing to hold Pool Construction Company, the Western Casualty and Surety Company, the North American Casualty and Surety Reinsurance Corporation, and the Excess Insurance Company of America secondarily liable for the unpaid taxes of Zschach Construction Company to the extent of the amounts it deducted from its employees and then failed to pay over to the government.

It is conceded that this case is indistinguishable in fact or in law from that of United States Fidelity & Guaranty Co. v. United States, 10 Cir., 1952,  201 F.2d 118. The government, however, contends that our conclusions in that case are erroneous and asks us to reexamine the question and overrule our former decision. Suffice it to say we have given further consideration to the question presented and a majority of the court adheres to the views expressed in our former decision.

The judgment appealed from is, therefore, Affirmed on authority of United States Fidelity & Guaranty Co. v. United States, 10 Cir.,  201 F.2d 118. See, also, General Casualty Co. of America v. United States. 5 Cir., 205 F.2d 753.