United States v. Globe Indemnity Co., 156.

Citation94 F.2d 576
Decision Date07 February 1938
Docket NumberNo. 156.,156.
PartiesUNITED STATES v. GLOBE INDEMNITY CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Satterlee & Canfield, of New York City (F. Morse Hubbard and Barham R. Gary, both of New York City, of counsel), for appellant.

Lamar Hardy, U. S. Atty., of New York City (Malcolm A. Crusius, Asst. U. S. Atty., of New York City, of counsel), for the United States.

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

AUGUSTUS N. HAND, Circuit Judge.

On March 1, 1920, J. A. Migel, Inc., a New York corporation, filed its income tax return for the fiscal year ending November 30, 1919. Upon the return a tax of $344,724.13 was assessed by the Commissioner and three quarterly installments of the tax as thus assessed were paid. On November 15, 1920, there remained due one-fourth of the tax, amounting to $86,181.04. The taxpayer filed a claim for the abatement of this amount and obtained a bond from the defendant Globe Indemnity Company in the sum of $100,000, to stay the collection pending a decision by the Commissioner in respect to the abatement. On December 11, 1926, the claim for abatement was allowed to the extent of $40,351.77. After this allowance a balance of $45,829.27 for the 1919 income taxes still remained due. On February 8, 1927, the taxpayer filed its petition with the Board of Tax Appeals for a redetermination of that part of the tax which had not been abated; namely, $45,829.27. While that proceeding was pending, the defendant, Globe Indemnity Company, on April 21, 1927, executed a new bond for $75,000 to stay the collection of the portion of the tax liability sought to be redetermined and the earlier bond for $100,000 was returned. The new bond, after reciting the denial of the taxpayer's claim for abatement to the extent of $45,829.27 and the appeal by the latter, contained the following defeasance provisions:

"Now, Therefore, if the United States Board of Tax Appeals, in its final decision, upholds in whole or in part the action of the Commissioner of Internal Revenue and the said J. A. Migel, Inc., pays to the said Frank K. Bowers, Collector of Internal Revenue and/or his successor in office, said balance of tax and interest thereon, or such amount thereof as may be found to be due by the final decision of the United States Board of Tax Appeals, then this obligation to be null and void; otherwise to be and remain in full force and effect.

"J. A. Migel, Inc. "By J. A. Migel "President. Seal "Globe Indemnity Company "By Frank T. Gilson "Resident Vice President."

During the pendency of the proceeding before the Board and after the giving of the last-mentioned bond to stay collection of the tax, on April 24, 1929, the taxpayer made a payment of $40,000 on account of the balance of $45,829.27. On September 24, 1929, the taxpayer and the Bureau of Internal Revenue filed a stipulation with the Board of Tax Appeals reciting:

"that the following represents the correct liability of the petitioner for the fiscal year ended November 30, 1919;

                  Tax assessed .................  $344,724.13
                  Less: Tax abated .............    40,351.77
                                                  ___________
                  (Sch. No. 23819)
                  Net tax assessed .............. $304,372.36
                  Total tax paid ................  298,543.09
                  Correct tax liability .........  298,738.74
                  Deficiency in payment .........      195.65
                  Unpaid taxes to be abated .....    5,633.62
                

It is further agreed that the Board of Tax Appeals may enter a final order of redetermination in accordance with this stipulation. It is understood and agreed that the Commissioner may collect the said deficiency in payment immediately upon the issuance by the Board of its order of redetermination. * * *"

Pursuant to the above stipulation the Board entered an order determining that $195.65 was the unpaid portion of the correct tax liability and that there should be an abatement of the balance of the unpaid assessment; that is to say, of $5,633.62. After the decision of the Board, the sum of $195.65 was paid by the taxpayer, and thus payment of income taxes for the year 1919 due on account of principal was completed but no interest had been paid at any time.

After the payment by the taxpayer of the $195.65, it requested the Indemnity Company to cancel the bond given for the stay. The latter declined to do this until evidence was produced that no further tax was due. The taxpayer thereupon requested the collector to furnish a statement showing whether there were any outstanding taxes. On February...

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  • United States v. Certain Parcels of Land, 13204.
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    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
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    ...771, 68 S.Ct. 85, 92 L.Ed. 356; N. L. R. B. v. T. W. Phillips Gas & Oil Co., 3 Cir., 1944, 141 F.2d 304, 305; United States v. Globe Indemnity Co., 2 Cir., 94 F.2d 576, 578, certiorari denied, 1938, 304 U.S. 575, 58 S.Ct. 1047, 82 L. Ed. 1538; Brown v. United States, D.C. S.D.Mo.1952, 102 F......
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    ...771, 68 S.Ct. 85, 92 L.Ed. 356; N. L. R. B. v. T. U. Phillips Gas & Oil Co., 3 Cir., 1944, 141 F.2d 304, 305; United States v. Globe Indemnity Co., 2 Cir., 1938, 94 F.2d 576, 578; Brown v. United States, D.C.S.D.Mo.1952, 102 F.Supp. 132, 133. But like all generalizations, this one too is ap......
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    ...States v. Shaw, 309 U.S. 495, 501, 60 S.Ct. 659, 661, 84 L.Ed. 888; Ritter v. United States, 3 Cir., 28 F.2d 265; United States v. Globe Indemnity Co., 2 Cir., 94 F.2d 576. Collectors of internal revenue are subordinate officers charged with the ministerial duty of collecting the taxes. R.S......
  • Gudgel v. Iverson, Civ. No. 1494.
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