Oscar Mayer & Co. v. United States (623 F.2d 1223, 1980)

CUMMINGS, Circuit Judge.

Plaintiff Wisconsin meatpacker and its Pennsylvania subsidiary sued to recover with interest alleged overpayments of $69,-958.03 assessed against plaintiffs and Alpha Technical Services, Inc., a defunct subsidiary of the Wisconsin corporation, under the employer withholding provisions of the Federal Insurance Contributions Act (FICA), Federal Unemployment Tax Act (FUTA), and income tax laws. Relying on the Supreme Court’s then recent decision in Central Illinois Public Service Co. v. United States, 435 U.S. 21, 98 S.Ct. 917, 55 L.Ed.2d 82, the district court granted summary judgment for plaintiffs. On appeal, the Government challenges that judgment insofar as the FICA and FUTA withholding taxes are concerned. We affirm.

The facts material to our consideration are not in dispute. During 1969 and 1970 plaintiffs and Alpha provided approximately 863 automobiles, leased on a fleet basis, to some of their salesmen, livestock procurers, and grocery product salesmen who, as determined by division executives, needed automobiles in performing their jobs. Each such employee was informed that the car was primarily for business use and that any personal use was expected to be incidental. The company required the employees to file standard expense reports, showing separately the business miles and personal miles accumulated during each week. Employées thereafter received reimbursement from the companies for all expenses incurred in operating the automobiles, less a charge of 3V2