O'CONNOR v. Commissioner of Internal Revenue

• Decision Date: 29 March 1940
• Docket Number: No. 9405.,9405.
• Citation: 110 F.2d 652
• Parties: O'CONNOR v. COMMISSIONER OF INTERNAL REVENUE.
• Court: U.S. Court of Appeals — Fifth Circuit

110 F.2d 652 (1940)

O'CONNOR v. COMMISSIONER OF INTERNAL REVENUE.

No. 9405.

Circuit Court of Appeals, Fifth Circuit.

March 29, 1940.

Frank Guittard, of Victoria, Tex., for petitioner.

Helen R. Carloss and Sewall Key, Sp. Assts. to Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue and C. R. Marshall, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

This is a petition for review of a decision of the Board of Tax Appeals. It involves a deficiency in income tax of the petitioner for the taxable year 1936.

During said year the petitioner, who was domiciled with his wife in the State of Texas, realized a capital gain from the sale of United States bonds acquired by him from his brother by bequest. The question is whether such gain was community income or constituted his separate income. The opinion of the Board of Tax Appeals is reported in 40 B.T.A. 488, which is referred to for a complete statement of the facts.

We have here a simple sale of separate property acquired by petitioner as legatee upon the death of his brother on October 20, 1932. The commissioner held that the gain from the proceeds of the sale constituted the petitioner's separate income, and the board approved the commissioner's determination. We concur in the conclusion of the board. Love v. Robertson, 7 Tex. 6, 56 Am.Dec. 41; Chappell v. McIntyre, 9 Tex. 161; Rose v. Houston, 11 Tex. 324, 62 Am.Dec. 478; Oliver v. Robertson, 41 Tex. 422; Hamilton v. Brooks, 51 Tex. 142; Edwards and Wife v. Brown, 68 Tex. 329, 4 S.W. 380; Schmidt v. Huppman, 73 Tex. 112, 11 S.W. 175; Stringfellow v. Sorrells, 82 Tex. 277, 18 S.W. 689; Welder v. Lambert, 91 Tex. 510, 44 S.W. 281; Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881; Tison v. Gass, 46 Tex. Civ.App. 163, 102 S.W. 751; Givens v. Carter, Tex.Civ.App., 146 S.W. 623; Stephens v. Stephens, Tex.Civ.App., 292 S.W. 290; Oglesby v. Potts, Tex.Civ.App., 40 S.W.2d 815; Stanolind Oil & Gas Co. v. Simpson-Fell Oil Co., Tex.Civ.App., 85 S. W.2d 325, affirmed, Tex., 125 S.W.2d 263; Foxworth-Galbraith Lumber Co. v. Thorp, Tex.Civ.App., 86 S.W.2d 644; Fain v. Fain, Tex.Civ.App., 93 S.W.2d 1226; Estrada v. Reed, Tex.Civ.App., 98 S.W.2d 1042; Gillespie v. Gillespie, Tex.Civ.App., 110 S.W. 2d 89.

The decision of the Board...