Estate of Mabel Cochran, Deceased Sidney Elmer Cochran and Donald Robert Cochran, Executors, and Joseph E. Cochran v. Commissioner of Internal Revenue

(dissenting).

I believe that a rehearing should be granted.

Our former opinion which, on 'November 12 last, affirmed the decision of the Tax Court, per curiam, should, I think, be withdrawn. In rendering our former decision we regarded the finding of the Tax Court that there was no valid partnership so far as the two Cochran daughters were concerned, as a determination of a question of fact which was not clearly erroneous. For my part I considered that the proper disposition of the matter was suggested by our decision in Harkness v. Commissioner of Internal Revenue, 9 Cir., 193 F.2d 655 , in which we held that the Tax Court’s findings on a somewhat similar question of fact were not clearly erroneous.

Upon petition for rehearing it is argued that the findings of the Tax Court here under review themselves disclose that that Court employed an erroneous concept as to the elements which must be present in order to justify a finding of bona fide intent to- carry on a present partnership. It is urged that the reliance upon that wrong concept taints the decision, and that we should assume that the Court might arrive at a different finding of fact had the erroneous concept not been…

Affirmed for the reasons given in the opinion of the Tax Court, entered July 12, 1951, Tax Court docket Nos. 26,266 and .26,267.

On Petition for Rehearing

Rehearing denied.

201 F.2d 365 ESTATE of Mabel COCHRAN, Deceased; Sidney Elmer COCHRAN and Donald Robert Cochran, Executors, and Joseph E. Cochran, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 13147. United States Court of Appeals Ninth Circuit. November 12, 1952. Rehearing Denied January 23, 1953. Petition to Review a Decision of the Tax Court of the United States. Eli Freed and Emmett Gebauer, San Francisco, Cal., for petitioner. Ellis N. Slack, Acting Asst. Atty. Gen., Charles S. Lyon, Asst. Gen. Counsel, Washington, D. C., A. F. Prescott, Fred E. Youngman and Joseph F. Goetten, Sp. Assts. to Atty. Gen., for respondent. Before HEALY, BONE, and POPE, Circuit Judges. PER CURIAM. 1 Affirmed for the reasons given in the opinion of the Tax Court, entered July 12, 1951, Tax Court docket Nos. 26,266 and 26,267. On Petition for Rehearing 2 Rehearing denied. 3 POPE, Circuit Judge (dissenting). 4 I believe that a rehearing should be granted. 5 Our former opinion which, on November 12 last, affirmed the decision of the Tax Court, per curiam, should, I think, be withdrawn. In rendering our former decision we regarded the finding of the Tax Court that there was no valid partnership so…