160 F.2d 614 (1st Cir. 1947), 4193, Commonwealth of Massachusetts v. United States

Docket Nº:4193, 4209.
Citation:160 F.2d 614
Party Name:COMMONWEALTH OF MASSACHUSETTS et al. v. UNITED STATES. UNITED STATES v. COMMONWEALTH OF MASSACHUSETTS et al.
Case Date:April 02, 1947
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 614

160 F.2d 614 (1st Cir. 1947)

COMMONWEALTH OF MASSACHUSETTS et al.

v.

UNITED STATES.

UNITED STATES

v.

COMMONWEALTH OF MASSACHUSETTS et al.

Nos. 4193, 4209.

United States Court of Appeals, First Circuit.

April 2, 1947

Alfred E. LoPresti, Asst. Atty. Gen. (Clarence A. Barnes, Atty. Gen., and John A. Brennan, Chief Counsel, Division of Employment Security, of Boston, Mass., on the brief), for Commonwealth of Mass., intervenor, and Carlton W. Spencer, defendant.

Norman S. Altman, Sp. Asst. to the Atty. Gen. (Sewall Key, Acting Asst. Atty. Gen., and Helen R. Carloss, Sp. Asst. to the Atty. Gen., and George F. Garrity, U.S. Atty., and Thomas P. O'Connor, Asst. U.S. Atty., both of Boston, Mass., on the brief), for the United States.

Before DOBIE (by special assignment) MAHONEY and WOODBURY, Circuit judges.

MAHONEY, Circuit Judge.

This case is here on cross appeals from the judgment of the district court. The question involves the application of Revised Statutes, Sec. 3466 (1898), 1 31 U.S.C.A. § 191, to payment of competing claims of the United States and the Commonwealth of Massachusetts against an insolvent taxpayer for unemployment compensation taxes under Title IX of the Social Security Act of 1935, 49 Stat. 620, 639, 26 U.S.C.A.Int.Rev.Code, § 1600 et seq., and the Massachusetts Unemployment Act. There is no dispute as to the facts which are briefly as follows: The Somerville Sales & Service, Inc., being insolvent in 1939 made a common law assignment for the benefit of creditors. The Commissioner of Internal Revenue

Page 615

filed with the assignee a claim against the assignor for 1938 federal unemployment compensation taxes under Title IX of the Social Security Act in the sum of $963.08, for 1938 and 1939 federal insurance contributions taxes under Title VIII of said Act, 26 U.S.C.A.Int.Rev.Code 1400 et seq., in the sum of $690.05, and for 1939 capital stock tax in the sum of $21. The Commonwealth of Massachusetts filed with the assignee its claim for state unemployment taxes under Massachusetts Unemployment Compensation Act in the sum of $803.72, representing contributions for 1938 and 1939. On October 6, 1939, the assignee paid out of the sum of $1, 135.11 which he had realized from the sale of the assets of the assignor $803.72 in full payment of the claim of the Commonwealth of Massachusetts and the remainder of $331.39 he paid to the...

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