Kelly v. United States

• Decision Date: 29 June 1936
• Docket Number: No. 7942.,7942.
• Parties: KELLY v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

84 F.2d 541 (1936)

KELLY v. UNITED STATES et al.

No. 7942.

Circuit Court of Appeals, Ninth Circuit.

June 29, 1936.

Ralph O. Olson, of Bellingham, Wash., and Stratton & Kane, of Seattle, Wash., for appellant.

Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, Clarence E. Dawson, and Frank J. Ready, Jr., Sp. Assts. to Atty. Gen., and J. Charles Dennis, U. S. Atty., and Gerald Shucklin, Asst. U. S. Atty., both of Seattle, Wash., for appellees the United States and others.

Before WILBUR, MATHEWS, and HANEY, Circuit Judges.

MATHEWS, Circuit Judge.

Appellant's petition for rehearing states that this court erred in failing to review the question presented and raised by appellant's specifications of error numbered I, II, and III; that this was the only question passed on by the District Court; and that the consideration thereof would not require an examination of the evidence. These specifications are as follows:

"I. The Court erred in holding that a decision of the Board of Tax Appeals is res adjudicata and binding upon the bankruptcy court, the said decision of the Board of Tax Appeals not having become final before the adjudication in bankruptcy.

"II. The Court erred in not holding that the Bankruptcy Court can review the final decision of the Board of Tax Appeals.

"III. The Court erred in disaffirming the order of the Special Referee and in not affirming the same for the reason that the claim of the United States Government disallowed by the said order of the said Special Referee is for taxes claimed to be due to the United States and questions arising as to the amount or legality of any such taxes are properly heard and determined by the Court in Bankruptcy, and the Court in Bankruptcy has jurisdiction of all such questions, regardless of the ruling thereon by the Board of Tax Appeals."

The question which these specifications attempt to raise is whether the decision of the Board of Tax Appeals therein referred to was binding and conclusive on the District Court. No such question is presented by the record. The record does not indicate that appellee's claim was founded on any decision of the Board of Tax Appeals, or that it had been the subject of any such decision, or that any such decision was pleaded, proved, or otherwise brought to the attention of the District Court, or that the District Court considered or determined the effect of any such decision. The judgment appealed from reads as follows:

"The above matter having come on before the Court upon the petition of the United States for review of the order of the Special Referee dated December 31, 1934, denying the claim filed by the Collector of Internal Revenue for the Collection District of Washington, acting for the United States Government, for $20,515.52 plus interest at 6% per annum from January 12, 1934, to date paid, on account of income tax liabilities because of asserted deficiencies for the fiscal years ended November 30, 1927, November 30, 1928, and November 30, 1929, and the Court on April 22, 1935, having filed his written memorandum decision upon the review of the Special Referee's order, and this matter, upon written notice to the parties, having been noted for hearing this 6th day of May, 1935, it is hereby

"Ordered, adjudged and decreed that the Special Referee's said order be and is hereby disaffirmed, and that the said claim of the United States Government be, and is hereby allowed as a priority claim as provided by Section 3466 R.S. and Section 64 (a) of the Bankruptcy Act, as amended, against the estate of the Carlisle Packing Company, a corporation, bankrupt, in the sum of $20,515.52, plus interest from January 12, 1934, at the rate of 6% per annum until paid, and that the said claim be paid."

There is no reference to any decision of...