CIR v. Finley, 5874

• Decision Date: 13 May 1959
• Docket Number: No. 5874,5878,5901,5882-5888.,5876,5874
• Citation: 265 F.2d 885
• Parties: COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. R. E. L. FINLEY, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Jerline Dick FINLEY, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. R. E. L. FINLEY and Jerline Dick Finley, Respondents. Robert Wesley FINLEY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Jacqueline Finley O'SHEA, Dan M. O'Shea, Dan M. O'Shea and Jacqueline Finley O'Shea, Harry L. Berry, Irene Dick Berry, Harry L. Berry and Irene Dick Berry, and Dick L. Berry, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

265 F.2d 885 (1959)

COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. R. E. L. FINLEY, Respondent.

COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Jerline Dick FINLEY, Respondent.

COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. R. E. L. FINLEY and Jerline Dick Finley, Respondents.

Robert Wesley FINLEY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Jacqueline Finley O'SHEA, Dan M. O'Shea, Dan M. O'Shea and Jacqueline Finley O'Shea, Harry L. Berry, Irene Dick Berry, Harry L. Berry and Irene Dick Berry, and Dick L. Berry, Respondents.

Nos. 5874, 5876, 5878, 5901, 5882-5888.

United States Court of Appeals Tenth Circuit.

April 9, 1959.

Rehearing Denied May 13, 1959.

Karl Schmeidler, Atty., Dept. of Justice, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., and Lee A. Jackson and Melva M. Graney, Attys., Department of Justice, Washington, D. C., with him on the brief), for the Commissioner of Internal Revenue in all cases.

No appearance for petitioner in No. 5901. Ram Morrison, Oklahoma City, Okl., filed a brief for petitioner in 5901.

No appearances in other cases.

Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

Rehearing Denied in No. 5901 May 13, 1959.

PICKETT, Circuit Judge.

These proceedings are here on petitions to review decisions of the Tax Court relating to the members of an Oklahoma family partnership referred to as "Fosco".¹ 5901 involves income tax deficiencies of Robert Wesley Finley² for the years 1946, 1947, 1948 and 1949. The remaining petitions were filed by the Commissioner to protect the revenue, and are to be considered only in case of a reversal in 5901. The parties agreed in the Tax Court that the several petitions for redetermination would be presented in two consolidated hearings, the first to include the cases here numbered 5874, 5876 and 5878, concerning deficiencies of R. E. L. Finley and his wife, Jerline Dick Finley, for the years 1946 to 1950, inclusive. The remaining cases, including that of the taxpayer, were tried together immediately after this first hearing. It was stipulated that all matters relating to Fosco would be tried in the first consolidated proceeding, and that the Tax Court's determination in that proceeding, with respect to such issues, would be binding on all the taxpayers.

The taxpayer contends that the Tax Court erred (1) in permitting the Commissioner to file, after the record was closed, an amended answer based on evidence offered only in the first hearing, and (2) in disallowing a deduction for a loss incurred from an alleged sale of personal property.

In determining the tax deficiencies of the various partners, the Commissioner disallowed items totalling $57,217.26, which were claimed to be Fosco subcontract expenses for the years 1946, 1947 and 1948.³ The basis for this disallowance was that it had not been shown that the payments were for work performed by a subcontractor and that the entire amount had been returned to the partnership or to its partners. In attempting to justify the deduction of these expenditures, the taxpayer was called as a witness in the first consolidated proceeding and testified that during the year 1946 the partnership issued its check in the amount of $9,500 payable to a subcontractor, Baughman, who endorsed the check and returned it to the taxpayer, who then deposited it in his personal bank account. He also testified that a similar transaction occurred in 1947 involving a check for $1,995. In his testimony the taxpayer claimed that the proceeds of these checks did not belong to him, and gave various explanations for the deposits. These amounts were not reported as part of his income for the years in question. Neither the Commissioner's notice of deficiency nor his answer to the taxpayer's petition for redetermination claimed these items to be income to the taxpayer. Evidence of the two transactions was not re-offered in the trial of the taxpayer's case.

With respect to the taxpayer's petition, the Commissioner, at the close of the second consolidated proceeding, requested permission to file an amended answer to conform the pleadings to the proof. This request was granted without a showing as to what the amendment would be. Several months thereafter, and prior to a decision in the case, the Commissioner filed an amended answer alleging that the two aforesaid items should be treated as income to the taxpayer. Relying upon the evidence and findings in the first case, the Tax Court upheld the Commissioner's contention.

Although not resisting the Tax Court's conclusion on its merits, the taxpayer contends that there is no evidence in the record of Number 5901 to sustain it. He urges that the stipulation between the parties did not authorize the Tax Court to treat testimony heard during the preceding trial as if it were reintroduced in the second hearing; that such testimony was never made a part of the record in his case; and furthermore, that the question of whether the two items were income to the taxpayer was never in issue.

In its decision on the taxpayer's petition, the Tax Court referred to the stipulation of the parties wherein it was agreed that a determination in the first case of all issues concerning Fosco would be determinative of related issues in the other cases. It specifically incorporated, by reference, the relevant finding into the record of this case.⁴ One of the issues in the first case was whether certain payments by Fosco to subcontractor Baughman were for work performed, and whether these payments, or any of them, were returned to the partners. Taxpayer's testimony was in support of the allowance of these payments as deductible business expense of Fosco and also disclosed that some of the payments found their way into his bank account. In the first trial the Tax Court found that the payments by Fosco were partnership business expense and that their deduction should have been allowed. It also found that the $9,500 and $1,995 payments were returned to the taxpayer and deposited by him in his personal bank account. These findings were related to the business of Fosco and, under the terms of the stipulation, bound the taxpayer. We see no reason why the Tax Court could not refer to the evidence upon which they were based. Just what the parties intended in the stipulation with reference to the findings is somewhat ambiguous. In such cases there will be no interference with the Tax Court's understanding of the stipulation. Clason v. Matko, 223 U.S. 646, 652, 32 S.Ct. 392, 56 L.Ed. 588; L. A. Wood & Cc. v. Taylor, 5 Cir., 154 F.2d 548, 550. It appears that the purpose of having two trials was to reduce the size of the record in case all of the taxpayers did not desire to appeal. There is no indication that there was any reason why the Tax Court should have been required to hear the same evidence in successive trials, or that the parties intended that it should. The most that can be said is that a formal motion to have the evidence included in the second record would have prevented any misunderstanding.

The taxpayer next questions the timeliness of the filing of the amended answer by the Commissioner. Section 272(e) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 272(e) (Sec. 6214 of the 1954 Code, 26 U.S.C.A. § 6214), confers jurisdiction upon the Tax Court to redetermine the correct amount of a taxpayer's deficiency and, in addition, it may increase the deficiency if the claim therefor is asserted at or before...