S. B. Tressler v. Commissioner of Internal Revenue

228 F.2d 356 S. B. TRESSLER, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 14205. United States Court of Appeals Ninth Circuit. November 10, 1955. Joseph A. Fitzsimmons, Fort Lauderdale, Fla., for petitioner. H. Brian Holland, Asst. Atty. Gen., John Potts Barnes, Chief Counsel, I. R. S., Chicago, Ill., Melva Graney, Ellis N. Slack, A. F. Prescott, George F. Lynch, Sp. Assts. to Atty. Gen., for respondent. 1 Before HEALY and POPE, Circuit Judges, and LINDBERG, District Judge. 2 LINDBERG, District Judge. 3 This case is before the court on a petition to review a decision of the Tax Court of the United States. 4 The facts for the purpose of review are to be found largely in the memorandum findings of fact and opinion of the Tax Court which are not officially reported. 1 They may be summarized as follows: 5 Petitioner, residing in Reno, Nevada, filed his federal income tax returns for 1946 and 1947 on the cash basis. 6 In August, 1944 he married Ada Zoeller Tressler in Maryland. On their honeymoon they visited petitioner's sons Norman and Kenneth in Reno, and subsequently went to Florida to spend the winter. Early in 1945 petitioner purchased several parcels of real…

This case is before the court on a petition to review a decision of the Tax Court of the United States.

The facts for the purpose of review are to be found largely in the memorandum findings of fact and opinion of the Tax Court which are not officially reported. 1 They may be summarized as follows:

Petitioner, residing in Reno, Nevada, filed his federal income tax returns for 1946 and 1947 on the cash basis.

In August, 1944 he married Ada Zoel-ler Tressler in Maryland. On their honeymoon they visited petitioner’s sons Norman and Kenneth in Reno, and subsequently went to Florida to spend the •winter. Early in 1945 petitioner purchased several parcels of real estate in Florida, including two apartments known as Maxwell Court Apartments for $45,-000 and Tarpon River Apartments for $22,875, title to which was taken in the name of petitioner’s son Kenneth.

On March 7, 1945 Ada filed in the Circuit Court of Florida a “Bill for Alimony Unconnected with Divorce,” 2 praying for “temporary and permanent support and alimony unconnected with a divorce together with suit money and a reasonable amount with which to compensate her attorneys.” She also asked for a decree adjudging that the…

(concurring specially) .

I agree with much that is said in the opinion, but I have reservations concerning what is said respecting the application of the rule of Trust of Bingham v. Commissioner, 325 U.S. 365 , 65 S.Ct. 1232 , 89 L.Ed. 1670 , to the facts of this case. The opinion here treats the Bing-ham case as one turning on determination of a question of fact. On the contrary, the facts there, as here, were not in dispute. The questions for decision related solely to the meaning of the words of § 23(a) (2), “ ‘property held for the production of income.’ ” Said the Court: “They are ‘clear cut’ questions’ of law.” After that section was added to the code in 1942 to abrogate the rule of Higgins v. Commissioner, 312 U. S. 212 , 61 S.Ct. 475 , 85 L.Ed. 783 , the Supreme Court rejecting the Commissioner’s narrow view of the new section, held in the Bingham ease that the section should have a liberal interpretation, to the end that a taxpayer engaged in the management of property which produces income should be allowed the same type of deductions as would Be allowed if his activities were a trade or business.

If Tressler had been in business, and efforts were made to have a…