In re Morgenstern & Co.

Citation57 F.2d 163
Decision Date04 April 1932
Docket NumberNo. 323.,323.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
PartiesIn re MORGENSTERN & CO. CARTER v. UNITED STATES.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Albert D. Smith, Asst. U. S. Atty., of Brooklyn, N. Y., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, M. C. Hawks, and C. E. Dawson, Bureau of Internal Revenue, all of Washington, D. C., of counsel), for appellant.

Bergen & Prendergast, of New York City (James W. Prendergast, and Roger Nutt, both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

PER CURIAM.

Morgenstern & Co. was adjudicated a bankrupt by the United States District Court for the Eastern District of New York, on April 11, 1930, and Walter F. Carter was appointed trustee on May 6th of the same year. Upon the trustee's petition, Referee O'Connor made an order that the United States file all claims it might have against the bankrupt on or before October 11, 1930, and that it should be barred from participating in the assets of the estate except as to claims filed before that date and subsequently allowed by the referee. No claims were filed during the period set by the order, but, on April 2, 1931, the collector of internal revenue filed with the referee a proof of claim for $3,878.31, representing income taxes for the year 1928, alleged to be due the United States from the bankrupt, and to be entitled to a preference. The United States at no time applied for the removal of the bar order or sought to open its default in failing to file the claim for income taxes on or before October 11, 1930, as provided in the order. It did allege that the order had no effect on the claim for income taxes "the origin and assessment of said liability having arisen subsequent to said bar order." In such a state of the record the trustee moved for an order expunging the claim on the ground that it had not been filed within the time provided by the order of June 16, 1930. This motion was granted by the referee, and his order was affirmed by the District Court upon a petition to review. From the order of affirmance, this appeal is taken.

We held in Re Anderson, 279 F. 525, that, because of the provisions of section 64a of the Bankruptcy Act, 11 USCA § 104 (a), directing the court to order trustees in bankruptcy to pay all taxes in advance of dividends to creditors, the government may be required to file its claims for taxes within a time fixed or otherwise to be barred from sharing in distribution of the assets in the hands of a trustee in bankruptcy. By In re J. Menist Co., Inc., 294 F. 532, we again approved of this practice for expediting administration. Judge Thacher in Re Stavin (D. C.) 12 F.(2d) 471, 473, adverted to the rule that the liquidation of tax claims is governed by section 64a, and stated that in aid of such liquidation presentation of these claims may be required within a period even less than that allowed for ordinary claims under section 57n (30 Stat. 561), which he said has "no relation to the procedure required under section 64a." In view of In re Anderson, supra, the order of the referee in the present estate barring the United States from participating in the assets except as to claims for taxes filed before October 11, 1930, was entirely valid and the motion to expunge the claim for income taxes which had not been filed within the time limited was properly granted.

It is true that under sections 274 and 275 of the Revenue Act of 1928 (26 USCA §§ 2274, 2275) the Commissioner of Internal Revenue had until May 15, 1931, to make the assessment for income taxes for the year 1928. Because of this the government says that the order requiring it to present its claim for taxes on or before October 11, 1931, could not affect its...

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3 cases
  • In re Banner Brewing Co., 5943.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 23 Septiembre 1938
    ...receiverships and has been considered in much detail in the Second Circuit. See In re Anderson, 2 Cir. 1922, 279 F. 525, In re Morgenstern & Co., 2 Cir.1932, 57 F.2d 163, and In re Swan, 2 Cir.1936, 82 F.2d In the case of United States v. Elliott, 6 Cir.1932, 57 F.2d 843, the Circuit Court ......
  • In re Ervin Service Corporation, 28986.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 22 Mayo 1940
    ...held that such claims did not come under the requirement of old Section 57, sub. n. In re Stavin, D.C., 12 F.2d 471; In re Morgenstern & Co., 2 Cir., 57 F.2d 163; In re Swan, 2 Cir., 82 F.2d 160; In re Banner Brewing Co., D.C., 24 F.Supp. 657; In re Stoever, D.C., 127 F. 394; In re J. Menis......
  • In re Harmack Produce Co.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 8 Abril 1942
    ...of a bar order are on a different footing since they do not involve the contravention of an Act of Congress. In re Morgenstern & Co. 2 Cir., 1932, 57 F.2d 163; United States v. Elliott, 6 Cir., 1932, 57 F.2d 843; People of State of New York v. Hopkins, 2 Cir., 1927, 18 F.2d Assuming that by......

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