St. Paul Abstract Co. v. Commissioner of Internal Revenue
Decision Date | 25 March 1929 |
Docket Number | No. 342.,342. |
Citation | 32 F.2d 225 |
Parties | ST. PAUL ABSTRACT CO. v. COMMISSIONER OF INTERNAL REVENUE. |
Court | U.S. Court of Appeals — Eighth Circuit |
Samuel Lipschultz, of St. Paul, Minn., for petitioner.
V. J. Heffernan, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (Mabel Walker Willebrandt, Asst. Atty. Gen., John Vaughan Groner, Sp. Asst. to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., on the brief), for respondent.
Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.
This is a petition to review a decision of the Board of Tax Appeals, which sustained the income tax against petitioner. The basis of petitioner's objection to the levy of the tax is that it is not subject thereto, because it is a "personal service corporation," within the meaning of section 200 of the Revenue Act of 1918 (40 Stat. 1057, 1059).
Two questions are presented here — the first, a matter of procedure; the second, the application of section 200 of the Revenue Act of 1918.
I. The Board of Tax Appeals made extended findings of fact concerning the business of petitioner which ended with the sentence following: "During 1919, 1920, and 1921, the petitioner was not a personal service corporation." The parties stipulate that the facts are as shown by the findings except the sentence above quoted. The question of procedure involved is whether the above-quoted sentence is a fact found which cannot be reviewed by this court except to the extent of ascertaining if there is any substantial evidence upon which it may be based. Feeders' Supply Co. v. Commissioner, 31 F.(2d) 274, this court, February 20, 1929; Denver Live Stock Comm. Co. v. Commissioner, 29 F.(2d) 543, 544, this court; Kendrick Coal & Dock Co. v. Commissioner, 29 F. (2d) 559, 563, this court. We think review of determinations by the Board of Tax Appeals is limited to questions of law. Same citations. Where the facts are undisputed there remains no question of fact in the usual sense of the term, but where the primary facts are agreed it is a question of law whether such facts justify the finding of an ultimate fact required by the statute. Botany Worsted Mills v. U. S., 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. ___, decided by Supreme Court, January 2, 1929. The ultimate fact required by this statute to be found is whether the taxpayer is a personal service corporation within the meaning of that statute. This requires a construction of the meaning of the statute and its application to a stipulated set of primary facts. We think that we must examine the stipulated facts and determine whether they justify the conclusion that this petitioner is not a personal service corporation within the meaning of the statute.
II. This second contention is as to whether the stipulated facts constitute petitioner such a corporation. The pertinent facts showing the character of business carried on by petitioner are as follows:
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