Bolich v. Rubel, 66.

Decision Date04 December 1933
Docket NumberNo. 66.,66.
PartiesBOLICH, Internal Revenue Agent, v. RUBEL.
CourtU.S. Court of Appeals — Second Circuit

Fred R. Angevine, of New York City, for appellant.

Harold Allen, of Washington, D. C., and Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Sewall Key and John MacC. Hudson, Sp. Assts. to Atty. Gen., and Herbert H. Kellogg and Albert D. Smith, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

PER CURIAM.

Rubel, the plaintiff, was the president of several corporations who filed income tax returns for the years 1926-1929, inclusive. The Commissioner found a deficiency as to all these years and sent to the companies "60-day letters," to review which they filed petitions with the Board of Tax Appeals. In February, 1933, while these appeals were pending, the Commissioner sent a letter to the corporations in conformity with section 1105 of the Revenue Act of 1926, directing them to submit their books for a second examination. Upon their failure to comply, the defendant, the acting internal revenue agent in Brooklyn, executed a summons directed to Rubel to appear with the corporate books for examination (section 1104, Revenue Act of 1926, as amended by Revenue Act 1928, § 618 26 USCA § 1247), and got an order from a District Judge to the same effect (section 617 (a), Revenue Act of 1928, 26 USCA § 2617 (a). Rubel moved to vacate this order, alleging that the Commissioner had already once examined the books thoroughly, and that, pending the appeals, the Board of Tax Appeals alone had jurisdiction over the controversy and its incidents. The judge denied the motion, and Rubel appealed.

Pending an appeal, the Commissioner is forbidden to "determine any additional deficiency" for the same year (section 274 (f), Revenue Act of 1926 26 USCA § 1048d); as a corollary, the Board may upon his demand increase the deficiency already "determined" and assess a tax upon it (section 274 (e) Revenue Act of 1926 26 USCA § 1048c). Thus the appeal is really a trial Ohio Steel Foundry Co. v. U. S., 38 F.(2d) 144, 146, 147 (Ct. Cl.); the first indeed that takes place, for the proceedings before the Commissioner are not judicial. There is some force, therefore, in the argument that the Commissioner's power (section 1104, Act of 1926 26 USCA § 1247) to examine a taxpayer's books for the purpose of "determining" a deficiency should be suspended for as long as his power to "determine" the deficiency is itself suspended. A further reason is that the Board has itself full power to compel the production of evidence, documentary and testamentary, either at the hearing, or by...

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26 cases
  • De Masters v. Arend
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 26, 1963
    ...precluded by 26 U.S.C.A. § 7421(a). 9 See National Plate & Window Glass Co. v. United States, 254 F.2d 92 (2d Cir., 1958); Bolich v. Rubel, 67 F.2d 894 (2d Cir., 1933). 10 Some doubt is suggested by Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 195, 66 S.Ct. 494, 90 L.Ed. 614 (19......
  • U.S. v. Wyatt
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 17, 1981
    ...hand to the IRS, have been justified and liberally construed, "because all the facts are in the taxpayer's hands." Bolich v. Rubel, 67 F.2d 894, 895 (2nd Cir. 1933). ..., to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or mat......
  • Falsone v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 26, 1953
    ...by 26 U.S.C.A. § 3614 is inquisitorial in character and has been compared to the power vested in federal grand juries. Bolich v. Rubel, 2d Cir., 67 F.2d 894, 895; Brownson v. United States, 8 Cir., 32 F.2d 844, 848. An important difference, however, is that, while the reports of grand jurie......
  • PAA Management, Ltd. v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 27, 1992
    ...was still subject to redetermination. See id. at 93 (emphasis added). In Gimbel, the Seventh Circuit cited and followed Bolich v. Rubel, 67 F.2d 894 (2d Cir.1933), a decision of this Court taking a similar approach to PAAM correctly points out that the Gimbel and Bolich cases involved indiv......
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