White v. Maddison, 2447.

• Decision Date: 26 November 1930
• Docket Number: No. 2447.,2447.
• Citation: 45 F.2d 335
• Parties: WHITE, Collector of Internal Revenue, v. MADDISON.
• Court: U.S. Court of Appeals — First Circuit

45 F.2d 335 (1930)

WHITE, Collector of Internal Revenue, v. MADDISON.

No. 2447.

Circuit Court of Appeals, First Circuit.

November 26, 1930.

J. Duke Smith, Sp. Asst. to U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellant.

Burton E. Eames, of Boston, Mass. (R. Gaynor Wellings, of Boston, Mass., on the brief), for appellee.

Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.

BINGHAM, Circuit Judge.

This is an action at law brought by the plaintiff against the collector of internal revenue to recover an amount of income taxes claimed to have been illegally exacted of him by the collector on December 15, 1925, in the sum of $3,311.54, with interest from the date of payment. The case was tried before the court upon an agreed statement of facts; a trial by jury having been waived in writing. Judgment was entered for the plaintiff, from which this appeal was taken.

The trial was had on November 13, 1929. On that day the defendant filed a motion for judgment. The motion at that time was denied; no exception was taken to the denial of the motion. On November 14 the court filed its opinion. November 22, 1929, the defendant filed and had allowed his bill of exceptions. In the bill of exceptions it appears that the defendant, in addition to its motion for judgment, filed a request for ruling, which was denied, reading as follows:

"The defendant requests the court to find as a matter of law that, where an individual on a calendar year basis reports for the year 1924 income from a partnership with a fiscal year ending in 1924, he is not entitled to the 25% reduction in tax provided by Section 1200(a) of Title 12 of the Revenue Act of 1924 with respect to his share of the partnership income applicable to the year 1923."

It also appears in the bill of exceptions that, during the trial, the plaintiff requested and was granted the following rulings: (1) That judgment be entered in his favor; (2) that he "is entitled to a reduction in tax to the extent of 25% of that portion of the tax on his share of the partnership income allocated to the calendar year 1923." No exception was taken to these rulings at the trial.

In the closing paragraph of the bill of exceptions, the defendant states that he is aggrieved by the ruling granting the plaintiff's requests and the refusal to grant his motion for judgment and request for ruling, and "now excepts to said rulings."

In the assignments of error the defendant complains that the court erred (1) in refusing to grant the defendant's motion for judgment; (2) in ordering and directing judgment for the plaintiff; (3) in ruling that the plaintiff is entitled to a reduction in tax to the extent of 25 per cent. of that portion of the tax on his share of the partnership income allocated to the calendar year 1923; and (4) in refusing to grant the defendant's request for ruling.

As no exceptions were taken at the trial by the defendant, either to the denial of his motion or request for ruling, or to the granting of the plaintiff's request, there is no basis for his assignments of error. Matters occurring during the course of a trial, and which it is desired to have reviewed, must be excepted to at the time; otherwise there is no basis for a review. The case, however, has been argued as though the matters in question had been duly excepted to at the trial and are here so considered; no objection being raised.

It appears that the plaintiff, on March 15, 1925, filed with the defendant an individually joint income tax return for the calendar year 1924, and reported in the return an income from a partnership, of which he was a member, of $99,797.75, representing his share of the partnership profits for the fiscal year beginning October 1, 1923, and ending September 30, 1924. The total net income of the plaintiff for the calendar year 1924, including the $99,797.75 above set out, was $108,887.88. Of the plaintiff's income distributable to him from the partnership in 1924, three-twelfths, or $24,949.44, was taxable at the 1923 rates, the tax thereon being $13,246.15. Nine-twelfths, or $83,938.44, was taxable at the 1924 rates, and the tax thereon was $15,747.01. The total tax as determined by the Commissioner was $28,993.16, he having disallowed a deduction of $3,411.54 or 25 per cent. of the tax of $13,246.15, being the portion of the tax assessed at the 1923 rates. This disallowance the Commissioner determined as an...