Licavoli v. CIR, 15073.
| Decision Date | 06 June 1963 |
| Docket Number | No. 15073.,15073. |
| Parties | Peter and Grace LICAVOLI, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John F. Noonan, Detroit, Mich. (Stanley M. Rosenblum, St. Louis, Mo., of counsel), for petitioners.
Thomas A. Skornia, Atty., Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Meyer Rothwacks, Attys., Dept. of Justice, Washington, D. C., on the brief), for respondent.
Before MILLER and O'SULLIVAN, Circuit Judges, and TAYLOR, District Judge.
The taxpayers, Peter and Grace Licavoli, sought redetermination in the Tax Court of deficiency income tax assessments for the years 1947 through 1951. Action No. 58055 involved income taxes of Grace Licavoli for 1947. Action No. 58056 involved income taxes of Peter Licavoli for the same year. Action No. 58057 involved the joint income tax liability of both taxpayers for the years 1948 through 1951. The Commissioner in his answers relied upon the net worth method of showing income and alleged fraud on the part of the taxpayers, which, if established by the proof, would have avoided the three year statute of limitations.
The Tax Court sustained taxpayers' motions to make the answers more definite and certain and, upon failure of the Commissioner to satisfactorily comply with this ruling, entered orders striking from the amended answers the allegations of fraud. In order to obtain appellate review of such order, the Commissioner moved for a decision in action No. 58056 only, in which, with the fraud issue stricken, the statute of limitations operated as a bar. The Tax Court entered its Decision of no deficiency in that action. The Decision of the Tax Court was affirmed by this Court in Commissioner v. Licavoli, 6 Cir., 252 F.2d 268, to which reference is made for a more detailed statement of the facts. See also: Licavoli v. Nixon, 312 F.2d 200, C.A.6th, for another chapter in this litigation, although not material to the issue herein involved.
Following the affirmance of the Decision of the Tax Court in action No. 58056, the Commissioner, proceeding ex parte, moved for and was granted leave to file second amended answers in the other two actions, namely, Nos. 58055 and 58057. These pleadings complied with the Court's previous orders to make the amended answers more definite and certain, which had been entered in all three actions but not complied with in action No. 58056, wherein the judgment of no deficiency resulting thereby had been affirmed by this Court as hereinabove referred to.
After motions to strike these amended answers were overruled, the taxpayers filed in each of the two cases a "Reply and affirmative Defenses," later followed by an unverified "Amended Reply and Affirmative Defense."
The Commissioner thereupon filed motions to require verification of the taxpayers' amended replies and for an order foreclosing the introduction of certain evidence. The Court granted the motion for verification and upon the taxpayers' refusal to do so entered its order that "the Amended Reply and Affirmative Defense in each case is stricken, and the allegations of facts alleged in respondent's second amended answer in each case are deemed admitted." The taxpayers thereupon filed their Petition for Review of said order in each case, which is now before us for consideration.
The petitioners on this review contend that the action of the Tax Court in case No. 58056, which was affirmed by this Court, operated as res judicata with respect to all proposed deficiencies and penalties for the taxable years 1947 through 1950; that the Tax Court erred in granting the Commissioner ex parte leave to file Second Amended Answers in these cases after the termination of the litigation in case No. 58056; and that petitioners should not have been required to verify their amended replies over their claim of immunity under the Fifth Amendment of the Constitution of the United States. Under the view which we take in the matter, it is unnecessary to consider these contentions at the present time.
Under Sections 7482(a) and 7483, Internal Revenue Code of 1954, the ...
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