ILLINOIS NATIONAL BANK v. United States

• Decision Date: 06 April 1959
• Docket Number: Civ. No. 2564.
• Citation: 173 F. Supp. 475
• Parties: ILLINOIS NATIONAL BANK, a Banking Corporation, As Conservator of the Estate of Earl Davenport, and Nellie Davenport, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Illinois

173 F. Supp. 475

ILLINOIS NATIONAL BANK, a Banking Corporation, As Conservator of the Estate of Earl Davenport, and Nellie Davenport, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 2564.

United States District Court S. D. Illinois, S. D.

April 6, 1959.

Olsen & Cantrill, Springfield, Ill., for plaintiffs.

Harlington Wood, Jr., U. S. Atty., Springfield, Ill., Garry A. Pearson and Herbert Awe, Department of Justice, Washington, D. C., for defendant.

POOS, District Judge.

Plaintiffs, Illinois National Bank, a banking corporation, as Conservator of the Estate of Earl Davenport, and Nellie Davenport, filed suit against the United States of America, defendant, praying judgment for the sum of $15,231.12, interest thereon and costs. The theory of plaintiffs is that the District Director of Internal Revenue for the 8th District of Illinois had made an illegal assessment of income tax against plaintiffs for the year 1948 in this that the District Director disallowed as a deduction from the sale price of farm land the sum of $56,610.42. The land in question was sold on the 3rd day of January, 1948, to J. Garrett Tolan and Marie Tolan by Warranty Deed, recorded on this date, by plaintiffs. In the income tax return filed for the year 1948, the taxpayers reported a sale of the land in question for the sum of $120,221.75, which had an original cost of $66,575.25, leaving a profit on the sale of $53,646.50. The taxpayers deducted from this profit the sum of $56,610.42, itemized as follows: $52,000 to Mayme Davenport, a former wife, $1,153.34 and $206.67 for interest paid on a farm loan, $606.28 for taxes, $2,400 commissions paid to a real estate salesman, and $242.13 for miscellaneous expense in connection with the sale. This left a net loss of $2,963.92. The only item in dispute between the parties is the deduction of $52,000 paid to Mayme Davenport the former wife, under a contract of property rights settlement which will hereinafter be referred to. The District Director disallowed this figure on the theory that it was a lump sum alimony settlement to Mayme Davenport.

The parties have stipulated that on January 17, 1949, Earl and Nellie Davenport, husband and wife, filed their joint income tax return for the year 1948; that on April 17, 1952, the Commissioner of Internal Revenue timely assessed the deficiency against plaintiffs for the year 1948; that the total deficiency of $12,747.66 plus interest of $2,483.46 was paid; that on October 11, 1955, plaintiffs filed a timely claim for refund, which was formerly denied on September 10, 1956, and that the complaint herein for a judgment against the United States was timely filed on September 9, 1958; and that the Court has jurisdiction of the subject matter.

The facts in the record are not in dispute.

The factual statement is as follows:

Prior to July 25, 1947, Earl Davenport, one of the parties plaintiff, and Mayme Davenport were husband and wife, and on this date the Circuit Court of Sangamon County, Illinois, at Springfield, entered a decree for divorce between the parties on the grounds of desertion. Prior to this time and on July 18, 1947, these parties entered in a property rights settlement in the following language, viz.:

"Post Nuptial Stipulation and Settlement of Property Rights.

"This contract and agreement made and entered into this 18th day of July, 1947, between the Plaintiff, Mayme Davenport and the Defendant, Earl Davenport, in settlement of all property rights and interests of and between the said parties, and all questions of alimony, maintenance and support, to be valid and binding upon the parties hereto when and if a decree of divorce is entered in the above entitled cause.

"Whereas said Mayme Davenport, Plaintiff, has heretofore on or about the 9th day of October, 1946, filed a Complaint in this cause for divorce against the Defendant, Earl Davenport. And, whereas the parties hereto have negotiated for a settlement of their marital disputes and property rights and have reached an agreement for the settlement thereof to be valid and binding upon the parties hereto in the event a decree of divorce is procured by the said Mayme Davenport; and whereas the parties hereto and their respective attorneys desire to agree and stipulate in writing their agreement for such settlement, it is stipulated, covenanted and agreed as follows:

"1. That the Plaintiff, Mayme Davenport, intends to file an Amended Complaint for divorce in the above entitled cause,

"2. The Defendant, Earl Davenport, will convey to the Plaintiff all his rights, title and interest by Quit Claim Deed in and to all real estate owned by the Plaintiff, Mayme Davenport, and the Plaintiff, Mayme Davenport shall Quit Claim to the Defendant all her rights, title and interest in the real estate owned by the Defendant, Earl Davenport, subject to the provisions hereinafter set forth.

"3. That the Defendant, Earl Davenport, will pay to the Plaintiff, Mayme Davenport, the sum of Fifty-two Thousand Dollars ($52,000.00) in full settlement of all her right, title and interest in the real estate of the Defendant, and as settlement of her property rights, claim for alimony or support money and including her attorneys fees and court costs, said sum of money to be paid in the manner following:

"That the Defendant shall pay to the Plaintiff, Mayme Davenport, the sum of Ten Thousand Dollars ($10,000.00) within thirty days of the date of the decree to be entered in this cause: and a further sum of Forty-Two Thousand Dollars ($42,000.00) within sixty days of the date a decree is entered in this cause; provided that if the Defendant is unable to furnish the entire sum aforesaid, the said Defendant will procure a first mortgage of Twenty Thousand Dollars ($20,000.00) on his land in Sangamon and, or Menard Counties in the State of Illinois, with the exception and omitting the land acquired by Will or inheritance from his father and mother, consisting of One hundred thirty-two (132) acres more or less in Cartwright Township in Sangamon County, Illinois; and at the same time said Defendant will give said Mayme Davenport or to such person or persons as she may designate a second or Junior mortgage on said real estate, subject only to a prior first mortgage of Twenty Thousand Dollars ($20,000.00) and subject to no other liens or encumbrances of any kind, which said second mortgage shall be made for a term not to exceed five (5) years with interest at the rate of four (4%) per cent per annum, payable semi-annually, and which second mortgage shall provide further that in the event the first mortgage shall become in default in the payment of interest or otherwise, the owner and holder or holders of said second mortgage may elect to declare said mortgage due and payable, and shall have all rights to exercise in order to protect the interests of the holder or holders in every respect as to said first mortgage; and said second mortgage shall provide for the prompt payment of interest and taxes and for reasonable insurance on the improvements and with the rights of foreclosure and for receiver in the event such default may occur.

"4. That the Plaintiff, Mayme Davenport, until March 1, 1948, shall have the right to use, occupy and have possession of the dwelling on the premises now occupied by her free of any charge for use or rent, and she shall have the further right for one Walter Marcussen and his family to continue to live on said premises and to use and occupy such parts thereof consisting of barns, sheds, cribs and other out buildings as are now used and occupied by him, until March 1, 1948, without charge for use or rent.

"5. That the Defendant, Earl Davenport, shall dismiss his suit against Walter Marcussen for possession of real estate, now pending before Charles McBrian, Justice of the Peace in Springfield, Illinois, such suit to be dismissed immediately.

"6. That the Defendant, Earl Davenport shall have the right to go upon the premises at any reasonable time prior to March 1, 1948, for the purpose of inspecting or managing his interests in the crops growing or grown on said premises and to manage, inspect and oversee the planting, cultivation, harvesting, division and delivery of crops; and that the said Walter Marcussen shall not be permitted to deliver any grain from said farm without the consent of said Defendant.

"7. That Plaintiff, Mayme Davenport, and Walter Marcussen shall surrender possession of the real estate now occupied by them, not later than March 1, 1948.

"8. In the event the Defendant, Earl Davenport, shall sell, mortgage, or in any way encumber any or all real estate that he owns except the One Hundred-thirty two (132) acres in Cartwright Township, of Sangamon County, Illinois, and any and all moneys thus derived from such sale or sales, mortgage or mortgages shall first be applied and paid on the lien or liens of the Plaintiff, Mayme Davenport, which is in the aggregate sum of Fifty-two Thousand Dollars ($52,000.00) before her lien or liens on said real estate shall be reduced; and the said liens or lien of the said Mayme Davenport shall be paid and satisfied in full by the Defendant, Earl Davenport, before any other claim or claims against said real estate are paid.

"9. It is covenanted and agreed that each and all of payments of money above mentioned shall be considered as owing by the said Earl Davenport to the said Mayme Davenport from the time the decree is entered in the above entitled cause, and that henceforth all said sums to be paid shall be paid to the said Mayme Davenport regardless of whether she remarries; and in case said Mayme Davenport should depart this life before said payments above mentioned have been made, it is understood and agreed that the unpaid balance of said money shall continue to be payable and owing by the said Earl Davenport; and in such case such unpaid sum shall be payable to the heirs, executors, administrators, legal...