Stubbs v. United States, No. 23810.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtMERRILL and KOELSCH, Circuit , and BYRNE
Citation428 F.2d 885
PartiesRobert C. STUBBS and Mary Ann Stubbs, husband and wife, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Docket NumberNo. 23810.
Decision Date16 July 1970

428 F.2d 885 (1970)

Robert C. STUBBS and Mary Ann Stubbs, husband and wife, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.

No. 23810.

United States Court of Appeals, Ninth Circuit.

June 16, 1970.

As Modified on Denial of Rehearing July 16, 1970.


428 F.2d 886

G. Eugene Isaak (argued), of Dunseath, Stubbs & Burch, Tucson, Ariz., for plaintiffs-appellants.

Kenneth L. Gross (argued), Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Thomas L. Stapleton, Dept. of Justice, A. Jerry Busby, Tax Division, Washington, D. C., Richard K. Burke, U. S. Atty., Tucson, Ariz., for defendant-appellee.

Before MERRILL and KOELSCH, Circuit Judges, and BYRNE, District Judge*.

MERRILL, Circuit Judge:

The question presented by this appeal is whether appellant taxpayers are entitled to a charitable deduction for property deeded to the City of Tuscon for a public road. A deduction was claimed on taxpayers' 1963 income tax return and was rejected by the Commissioner. The alleged deficiencies were paid and this suit for a refund was brought. Following a jury trial judgment was rendered for the Government denying appellants their refund.

Taxpayers had entered into an agreement to purchase certain property contingent on its rezoning to permit use for a trailer court and shopping center. A plat was prepared for presentation to the Tucson City Planning and Zoning Commission. To assure access to the portion intended for a mobile home development the plat provided for dedication of a strip of the property as a public road. The road would also provide access or frontage for some of the remaining property, for an unrelated public school, church and home for the aged. Following hearings the Zoning Commission recommended approval and rezoning, and transmitted the recommendation to the City Council. Approximately three weeks later taxpayers completed their purchase and made the contemplated transfer to the city. The rezoning ordinance was formally adopted by the City Council some four months later.

The position of the United States throughout these proceedings has been that the purpose of the transfer was to benefit directly the remaining

428 F.2d 887
portions of taxpayers' property,1 and to assist in obtaining the necessary rezoning;2 that under these circumstances the dedication was not for a charitable purpose under § 170 of the Internal Revenue Code of 1954 (26 U.S.C. § 170), but for anticipated economic gain. The United States relies on this court's decisions in United States v. Transamerica Corp., 392 F.2d 522 (9th Cir. 1968); and DeJong v. Commissioner of Internal Revenue, 309 F.2d 373 (9th Cir. 1962). The District Court accepted this view and the jury was accordingly instructed that if such was the taxpayers' purpose a refund could not be allowed

Taxpayers contend that purpose does not control in such a case as this and consequently that the instructions were erroneous and prejudicial. They assert that here the dedication was not compelled by law or by such coercive conditions as were present in the Transamerica case. In such a case as this, they...

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48 practice notes
  • Southern Pacific Transp. Co. v. Comm'r of Internal Revenue, Docket No. 3493-69.
    • United States
    • U.S. Tax Court
    • December 31, 1980
    ...questioning or rejecting the Duberstein criteria: United States v Transamerica Corp 392 F.2d 522 (9th Cir. 1968); Stubbs v United States 428 F.2d 885 (9th Cir. 1970); Allen v United States 541 F.2d 786 (9th Cir. 1976); Singer v United States 196 Ct. Cl. 90, 449 F.2d 413 (1971). See also Cro......
  • Foster v. Comm'r of Internal Revenue , Docket No. 1717-78.
    • United States
    • U.S. Tax Court
    • January 11, 1983
    ...would not disqualify a transfer as a charitable contribution but that a direct economic benefit would.126 In Stubbs v. United States, 428 F.2d 885, 886-887 (9th Cir. 1970), it held that the expectation of a benefit need not be the sole purpose, but rather only the dominant purpose, of a tra......
  • Graham v. C.I.R., Nos. 84-7794
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 17, 1987
    ...Allen v. United States, 541 F.2d 786, 788 (9th Cir.1976); Collman v. Comm'r, 511 F.2d 1263, 1267 (9th Cir.1975); Stubbs v. United States, 428 F.2d 885, 887 (9th Cir.1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 567, 27 L.Ed.2d 621 (1971); DeJong v. Comm'r, 309 F.2d 373, 376-79 (9th Cir.1962)......
  • U.S. v. King, Nos. 77-2611
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 31, 1978
    ...It is a matter largely within the good discretion, judicially exercised, of the trial judge." Id. at 567. Accord, Stubbs v. United States, 428 F.2d 885 (9th Cir. 1970), Cert. denied, 400 U.S. 1009, 91 S.Ct. 567, 27 L.Ed.2d 621 (1971); Todisco v. United States, 298 F.2d 208 (9th Cir. 1961), ......
  • Request a trial to view additional results
48 cases
  • Southern Pacific Transp. Co. v. Comm'r of Internal Revenue, Docket No. 3493-69.
    • United States
    • U.S. Tax Court
    • December 31, 1980
    ...questioning or rejecting the Duberstein criteria: United States v Transamerica Corp 392 F.2d 522 (9th Cir. 1968); Stubbs v United States 428 F.2d 885 (9th Cir. 1970); Allen v United States 541 F.2d 786 (9th Cir. 1976); Singer v United States 196 Ct. Cl. 90, 449 F.2d 413 (1971). See also Cro......
  • Foster v. Comm'r of Internal Revenue , Docket No. 1717-78.
    • United States
    • U.S. Tax Court
    • January 11, 1983
    ...would not disqualify a transfer as a charitable contribution but that a direct economic benefit would.126 In Stubbs v. United States, 428 F.2d 885, 886-887 (9th Cir. 1970), it held that the expectation of a benefit need not be the sole purpose, but rather only the dominant purpose, of a tra......
  • Graham v. C.I.R., Nos. 84-7794
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 17, 1987
    ...Allen v. United States, 541 F.2d 786, 788 (9th Cir.1976); Collman v. Comm'r, 511 F.2d 1263, 1267 (9th Cir.1975); Stubbs v. United States, 428 F.2d 885, 887 (9th Cir.1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 567, 27 L.Ed.2d 621 (1971); DeJong v. Comm'r, 309 F.2d 373, 376-79 (9th Cir.1962)......
  • U.S. v. King, Nos. 77-2611
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 31, 1978
    ...It is a matter largely within the good discretion, judicially exercised, of the trial judge." Id. at 567. Accord, Stubbs v. United States, 428 F.2d 885 (9th Cir. 1970), Cert. denied, 400 U.S. 1009, 91 S.Ct. 567, 27 L.Ed.2d 621 (1971); Todisco v. United States, 298 F.2d 208 (9th Cir. 1961), ......
  • Request a trial to view additional results

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