Dean P. EPPERSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, 490 F.2d 98

CHRISTENSEN, Senior District Judge. This is an action by the plaintiff-appellant for refund of federal income taxes for the taxable years 1962 through 1965 in the amount of $95,350.83, with interest. A district court jury returned a verdict in favor of the United States on the determinative issues submitted to it, and judgment on the verdict against the taxpayer was duly entered. The sufficiency of the evidence to support the verdict is unquestioned.

This appeal brings before us the contention that the trial court committed prejudicial errors in permitting the government to change its theory of defense shortly prior to the trial or in denying plaintiff’s motion for a continuance in light of the new theory, in sustaining defendant’s objections to “expert” testimony that plaintiff’s service corporation “more nearly resembled a corporation”, in refusing plaintiff’s proposed instruction that his intent to repay loans could be inferred from the advice of his financial advisor, and in failing to take corrective action against references by government counsel to plaintiff’s wealth during argument to the j ury.

Finally rebuffed by such rulings as United States v. Empey, 406 F.2d 157 (10th Cir. 1969), the government prior to the trial abandoned its theory that for tax purposes plaintiff’s professional service organization could not be considered a “corporation”. It supplemented its existing alternate contention that the income in question was dividend income to the plaintiff, and not loans as asserted by the taxpayer, by the claim that plaintiff, and not his corporation, had actually earned the income. The case was at issue on general denials and there had been no pretrial conference.

The trial court declined to require amendment to the government’s answer expressly setting out the new theory/ We find no error here. An action to recover a tax erroneously paid is in the nature of a common-law action for money had and received, and it is open to the defendant to show any state of facts which according to those standards would deny the right of recovery. Stone v. White, 301 U.S. 532, 57 S.Ct. 851, 81 L.Ed. 1265 (1937). Ryan v. Alexander, 118 F.2d 744 (10th Cir. 1941); United States v. Pfister, 205 F. 2d 538 (8th Cir. 1953). Cf. Schweitzer v.

Commissioner of Internal Revenue, 75 F.2d 702 (7th Cir. 1935). Appellant’s argument that he was prejudiced by the denial of his request for a continuance is not convincing. With more than two week’s advance notice of this supplemental contention, he said he needed more time to prepare his proof, but the facts relating to the pre-existing issue of loans vs. dividends were essentially the same as those relied upon by the government to support its true-earner-of-income theory.

Appellant’s additional complaint that he was deprived of sufficient time to pursue negotiations for settlement in view of the government’s new and stronger approach may be disposed of by its mere statement, as can his further contention that he needed more time to prepare jury instructions. No prejudicial error is perceived in the court’s exclusion of expert testimony offered by the plaintiff, since this related to an issue already abandoned by the government — whether the service corporation more nearly resembled a corporation than a sole proprietorship.

Nor did the court err in failing to give appellant’s requested instruction singling out for comment some advice plaintiff received from his financial advisor about not keeping records of claimed loans. The testimony of this advice already was before the jury. A reading of the court’s instructions on the subject is convincing that the controlling question of plaintiff’s intent was appropriately and fairly submitted.

Moreover, any possible error in the omission from the instructions of a reference to the advice received by appellant was not prejudicial in view of the jury’s verdict that the appellant, and not the corporation, was the true earner of the income. But we' are more than a little concerned about the immoderate closing argument of counsel for the government. He said, among other things: “We see no reason why a man who has as much money as Dr. Epperson, who has more money than he can probably ever spend, is entitled to ignore all of the rules that everybody else has to live by .

We say he is not entitled to a refund of taxes because he hasn’t paid his fair share.” Again: “Let’s make this doctor pay the kind of income taxes he ought to pay.” And later: “I am sick and tired and I know you are at having to pay taxes at a rate when these rich people like to construe and set up all these transactions to save taxes so they don’t have to pay any. I know that you are tired of — ”. No objection was interposed to the first two comments.

Appellant’s objection to the latter was, “I have to object to that, as personal objections.” The’ court recognized it as “a little personal”, but as “his argument”, and passed the matter by. An appropriate admonition to the jury at least would have been in order. No request for any such admonition, nor any motion for a mistrial, was made by appellant’s counsel. We believe the quoted portions were in bad taste if no reprehensible.

But under these circumstances and in the context of the entire argument we have concluded that there was no prejudicial error committed by the trial court with reference to them, and that the defendant was not denied a fair trial in view of the record as a whole. Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 237-240, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). Aifirmed.