Rogers v. Strong, 5425
| Decision Date | 01 August 1934 |
| Docket Number | No. 5425,5432.,5425 |
| Citation | 72 F.2d 455 |
| Parties | ROGERS, Collector of Internal Revenue, v. STRONG. STRONG v. ROGERS, Collector of Internal Revenue. |
| Court | U.S. Court of Appeals — Third Circuit |
Hobart & Minard, of Newark, N. J. (Montgomery B. Angell, of New York City, George S. Hobart, of Newark, N. J., Charles J. Nourse, of New York City, and Weston Vernon, Jr., of Washington, D. C., of counsel), for Strong.
Frank J. Wideman, Asst. Atty. Gen., Sewall Key and M. H. Eustace, Sp. Assts. to the Atty. Gen., Harlan Besson, U. S. Atty., of Trenton, N. J., and Isador S. Worth, Asst. U. S. Atty., of Riverside, N. J., for Collector of Internal Revenue.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
In the court below the plaintiff brought suit against the collector to recover back income tax illegally, as alleged, collected from her. By stipulation filed, a jury was waived and the case tried by a judge. He held that the item in dispute was income, and on that issue entered the judgment in favor of the collector, from which the plaintiff took appeal No. 5432. He also held that in assessing such income item the commissioner had valued the stocks in question in excess of their fair value, and for such excess he entered judgment in plaintiff's favor. Thereupon the collector took appeal No. 5425. The two appeals were heard by this court together, and both are disposed of in this opinion.
The facts and figures in the case are numerous and complicated. The findings of fact by the court are ninety-seven in number and cover thirty-five pages of the record, but, out of the mass of testimony and maze of facts and figures, we gather that two comparatively simple questions are decisive of the case. The first one concerns the taxpayer's appeal, and that is whether, in the light of the facts found by the trial judge, the plaintiff can, on the income she received, avail herself of the exception provided by section 112 of the Revenue Act of 1928 (26 USCA § 2112), viz.: "The term `reorganization' means a merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation). * * *"
The second question, which concerns the government's appeal, is whether there was evidence from which the trial judge might find the value of the stock involved was what he found.
Turning to the first question, the situation shown was of such an individual character that in the nature of things it never could be duplicated in another tax case, and any ruling thereon would create no precedent nor decide any principle of law. As the judge has found the voluminous facts and decided they do not fall within the statute above quoted, and as we agree with his conclusion, we find no call to restate those facts in a lengthy opinion, but restrict ourselves to brief reference thereto.
In the final analysis, the taxpayer's appeal turns on the construction and...
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... ... Co., 294 F. 725; Heiner v. Crosby, 24 F.2d 191; ... In re Schuyler, 73 F.2d 241; Rogers v ... Strong, 72 F.2d 455. (11) The judgment below should be ... reversed and the circuit court ... ...
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