Commissioner of Internal Revenue v. Rieck, No. 6636.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBUFFINGTON and BIGGS, Circuit , and DICKINSON
Citation104 F.2d 294
PartiesCOMMISSIONER OF INTERNAL REVENUE v. RIECK.
Decision Date16 June 1939
Docket NumberNo. 6636.

104 F.2d 294 (1939)

COMMISSIONER OF INTERNAL REVENUE
v.
RIECK.

No. 6636.

Circuit Court of Appeals, Third Circuit.

January 17, 1939.

Rehearing Denied June 16, 1939.


James W. Morris, Asst. Atty. Gen., and Sewall Key, Norman D. Keller, Joseph M. Jones, and Harry Marselli, Sp. Assts. to Atty. Gen., for petitioner.

William A. Seifert, William Wallace Booth, and Fred T. Ikeler, all of Pittsburgh, Pa., for respondent.

Before BUFFINGTON and BIGGS, Circuit Judges, and DICKINSON, District Judge.

DICKINSON, District Judge.

The Commissioner of Internal Revenue levied a tax for the year 1932, upon the respondent taxpayer, based upon income received during that year. The Commissioner on a deficiency assessment included in the taxpayer's taxable income what the taxpayer claimed to be the income of what is known to this record as an Insurance Trust. The taxpayer paid the assessed tax on March 15, 1933 and the deficiency assessment on September 5, 1934. He then appealed to the Board of Tax Appeals, complaining of an over assessment because of the inclusion of the Insurance Trust income in the taxpayer's taxable income and asked for a refund of the overpayment. This claim was filed April 19, 1935. The taxpayer had likewise included in his return of his 1933 income a deduction because of a loss suffered through the worthlessness of shares of stock in the Diamond National Bank. The Commissioner conceded the fact of the loss but refused the deduction because of his holding that the loss had been incurred in 1932 and hence could not be deducted from the 1933 income.

In the course of the Appeal to the Board above mentioned, the taxpayer became convinced that his claim to a deduction because of the Insurance Trust income was baseless and would not be as it was not allowed by the Board. He accordingly asked and was granted by the Board leave to amend his claim by substituting for the Insurance Trust income deduction a deduction for the Bank stock loss. This amendment was allowed September 28, 1936. The significance of this is that the original claim was filed April 19, 1935, within two years of the payment of the tax. The amended claim was not made until September 28, 1936, more than two years after the payment. If, however, the allowance of the amendment was proper, the Bank loss claim would relate back to the Insurance Trust claim and both would be within the two years. The principle is too well settled to require the citation of authorities to support it,...

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8 practice notes
  • Jackson v. Airways Parking Company, Civ. A. No. 11413.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 7, 1969
    ...could not relate back to the date of the original pleading for statute of limitation purposes. Commissioner of Internal Revenue v. Rieck, 104 F.2d 294 (3d Cir., 1939); Blair v. Durham, 134 F.2d 729 (6th Cir., 1943); Lorenzen v. United States, 52 F.2d 106 (8th Cir., 1931). It was stated that......
  • Denholm & McKay Co. v. Commissioner of Int. Rev., No. 3797.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 14, 1942
    ...as amended by § 809(a) of the Revenue Act of 1938.3 The Commissioner cited as authority on the point Commissioner v. Rieck, 3 Cir., 1939, 104 F.2d 294. A hearing was held on July 5, 1939, on this issue as to the statute of limitations. The Board member rejected the Commissioner's contention......
  • Hageman v. Signal LP Gas, Inc., No. 73-1110.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 31, 1973
    ...599 (1969), rehearing denied, 396 U.S. 871, 90 S.Ct. 36, 24 L. Ed.2d 126 (1969); Commissioner of Internal 486 F.2d 484 Revenue v. Rieck, 104 F.2d 294 (3d Cir. 1939), cert. denied, 308 U.S. 602, 60 S.Ct. 138, 84 L.Ed. 504 (1939). We have previously held that an amendment adding another party......
  • Boerkoel v. Hayes Mfg. Corporation, Civil Action No. 963.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • March 26, 1948
    ...Mosby, 8 Cir., 72 F.2d 840, certiorari denied 293 U.S. 623, 55 S.Ct. 237, 79 L.Ed. 710; Commissioner of Internal Revenue v. Rieck, 3 Cir., 104 F.2d 294, certiorari denied 308 U.S. 602, 60 S.Ct. 138, 84 L.Ed. 504, rehearing denied 310 U.S. 657, 60 S.Ct. 1084, 84 L.Ed. 1421; Lorenzen v. Unite......
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8 cases
  • Jackson v. Airways Parking Company, Civ. A. No. 11413.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 7, 1969
    ...could not relate back to the date of the original pleading for statute of limitation purposes. Commissioner of Internal Revenue v. Rieck, 104 F.2d 294 (3d Cir., 1939); Blair v. Durham, 134 F.2d 729 (6th Cir., 1943); Lorenzen v. United States, 52 F.2d 106 (8th Cir., 1931). It was stated that......
  • Denholm & McKay Co. v. Commissioner of Int. Rev., No. 3797.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 14, 1942
    ...as amended by § 809(a) of the Revenue Act of 1938.3 The Commissioner cited as authority on the point Commissioner v. Rieck, 3 Cir., 1939, 104 F.2d 294. A hearing was held on July 5, 1939, on this issue as to the statute of limitations. The Board member rejected the Commissioner's contention......
  • Hageman v. Signal LP Gas, Inc., No. 73-1110.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 31, 1973
    ...599 (1969), rehearing denied, 396 U.S. 871, 90 S.Ct. 36, 24 L. Ed.2d 126 (1969); Commissioner of Internal 486 F.2d 484 Revenue v. Rieck, 104 F.2d 294 (3d Cir. 1939), cert. denied, 308 U.S. 602, 60 S.Ct. 138, 84 L.Ed. 504 (1939). We have previously held that an amendment adding another party......
  • Boerkoel v. Hayes Mfg. Corporation, Civil Action No. 963.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • March 26, 1948
    ...Mosby, 8 Cir., 72 F.2d 840, certiorari denied 293 U.S. 623, 55 S.Ct. 237, 79 L.Ed. 710; Commissioner of Internal Revenue v. Rieck, 3 Cir., 104 F.2d 294, certiorari denied 308 U.S. 602, 60 S.Ct. 138, 84 L.Ed. 504, rehearing denied 310 U.S. 657, 60 S.Ct. 1084, 84 L.Ed. 1421; Lorenzen v. Unite......
  • Request a trial to view additional results

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