William O. Douglas

“ Since the tax in question could not by the terms of the contract be billed to the United States, there was no overcharge. If the contractor lawfully avoids payment of a tax he reduces his cost and increases his profit. But in absence of a provision which authorizes it the reduction of cost is hardly the basis of a refund to the United States. As the Court of Claims points out, it is hard to see how the vendor could be required to pay the United States any savings which it made as a result of reductions in tariff duties. ”

“ The inference is strong therefore that the parties intended the price to be firm, except as it might be increased through the imposition of new taxes. The provision for the inclusion of applicable taxes provides a formula for determining the price to be billed. ”

“ If those units had been excluded, the unjust enrichment tax would have been reduced by $1,706.59. If respondent is required to reduce its price by the amount of the unpaid processing tax, it is not subject to the unjust enrichment tax on these transactions. See United States v. Kansas Flour Mills Corp., supra, 314 U.S. page 216, note 6, 62 S.Ct. page 235, 86 L.Ed. 159. The United States concedes that if it prevails the respondent is entitled to recover $1,706.59. ”