Merrill

Appellee brought this action for refunds of income taxes paid by him for the taxable years 1939 and 1940. The facts are undisputed. Appellee’s wife died testate in the State of Washington on April 9, 1939. In her will, which was of the non-intervention type, she named appellee as executor and bequeathed her one-half interest in the community property, after payment of certain minor bequests to appellee in trust to pay the income to himself for life.

After the will was admitted to probate on April 21, 1938, appellee immediately separated the community property into two equal parts and carried only his deceased wife’s one-half share of this property in his books of account as executor. He carried the other one-half of the community property in a separate set of books as his individual property.

On November 22, 1939 the probate court entered a decree of distribution directing that the estate be distributed one-half to appellee as “his community interest” and the other one-half, after payment of the minor bequests, to himself as trustee in accordance with his wife’s will. The decree further authorized a payment of $20,000 to appellee as executor’s fees.

Thereafter and on December…

211 F.2d 297 UNITED STATES v. MERRILL. No. 13390. United States Court of Appeals Ninth Circuit. March 2, 1954. H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Thomas R. Winter, Fred Youngman, Helen Goodner, Audley J. Godfrey, Jr., Sp. Assts. to Atty. Gen., Charles P. Moriarty, U. S. Atty., Seattle, Wash., for appellant. Wright, Innis, Simon & Todd, Seattle, Wash., for appellee. Before HEALY, BONE and POPE, Circuit Judges. BONE, Circuit Judge. 1 Appellee brought this action for refunds of income taxes paid by him for the taxable years 1939 and 1940. The facts are undisputed. Appellee's wife died testate in the State of Washington on April 9, 1939. In her will, which was of the non-intervention type, she named appellee as executor and bequeathed her one-half interest in the community property, after payment of certain minor bequests to appellee in trust to pay the income to himself for life. 2 After the will was admitted to probate on April 21, 1938, appellee immediately separated the community property into two equal parts and carried only his deceased wife's one-half share of this property in his books of account as executor. He carried the other one-half of the community…

(dissenting in part).

I would affirm the judgment in toto. My reason for disagreeing with the partial reversal is that I think the cases cited in footnote 4 of the opinion do not justify a departure from the rule of United States v. Waechter, 9 Cir., 195 F.2d 963 .

Hormel v. Helvering, 312 U.S. 552 , 61 S.Ct. 719, 722 , 85 L.Ed. 1037 , expressly recognized “the desirability and existence of a general practice under which appellate courts confine themselves to the issues raised below”. But the case was considered an exceptional one because of the extraordinary circumstance that the new and controlling decision in Helvering v. Clifford, 309 U.S. 331 , 60 5. Ct. 554, 84 L.Ed. 788 , was announced after the Tax Court decision, but before that of the Court of Appeals.

No such special conditions here justify departure from the ordinary rule. This is not a Tax Court case. Hormel was a review of the Board of Tax Appeals, and the court found support for its out-of-the-ordinary rule in the broad language of the then statute relating to review in such cases. This case, on the contrary is, like Waechter, an appeal from a judgment of a district court. As no extraordinary circumstances are…