Hugh H. Earle, Former Collector of Internal Revenue v. Angela MacEvoy Woodlaw

245 F.2d 119 Hugh H. EARLE, Former Collector of Internal Revenue, Appellant, v. Angela MacEvoy WOODLAW et al., Appellees. No. 15062. United States Court of Appeals Ninth Circuit. February 28, 1957. Rehearing Denied April 10, 1957. Writ of Certiorari Denied June 24, 1957. See 77 S.Ct. 1400 . Charles K. Rice, Asst. Atty. Gen., C. E. Luckey, U. S. Atty., Victor E. Harr, Portland, Or., Lee A. Jackson, A. F. Prescott, Louise Foster, Feather & Fong, Washington, D. C., for appellant. George W. Mead and Stephen W. Matthieu, Portland, Or., for appellees. Before FEE and BARNES, Circuit Judges, and MURRAY, District Judge. BARNES, Circuit Judge. 1 The former District Collector of Internal Revenue for Oregon appeals from a judgment of the District Court awarding appellees (Executors of the estate of G. T. Woodlaw, deceased) the sum of $153,550.92 for the year 1946; $1,162.67 for the year 1947; and $31,688.38 for the year 1949, together with interest and costs, which sums constitute claims for refund of taxes paid because of deficiencies assessed against taxpayer — decedent, G. T. Woodlaw, for the years mentioned. 2 The deficiencies were claimed in each year because the Government…

The former District Collector of Internal Revenue for Oregon appeals from a judgment of the District Court awarding appellees (Executors of the estate of G. T. Woodlaw, deceased) the sum of $153,550.92 for the year 1946; $1,162.-67 for the year 1947; and $31,688.38 for the year 1949, together with interest and costs, which sums constitute claims for refund of taxes paid because of deficiencies assessed against taxpayer — decedent, G. T. Woodlaw, for the years mentioned.

The deficiencies were claimed in each year because the Government asserted that certain payments made by the Oregon corporation, Woodlaw Investment Company, to the taxpayer G. T. Wood-law as sole stockholder (save for qualifying shares) 1, in connection with the purchase and retirement of one-half of the corporation’s outstanding stock, were distributions essentially equivalent to a taxable dividend, within the meaning of Section 115(g) of the Internal Revenue Code of 1939. The deficiencies had ,been paid with interest, and timely claims for refund subsequently filed.

Taxpayer and appellees had maintained the payments in question were a distribution of capital assets, and paid taxes on that basis. The trial court…

(dissenting).

Since this case has been sent back for partial retrial, the grounds of this dissent should be set out. We should have affirmed the judgment of the trial court.

It is admitted that this is an appeal upon questions of fact. No legal principles are involved. This Court is not empowered to write new findings of fact. It can reverse when the findings are clearly erroneous only when, on the entire evidence, the reviewing court is left with a definite and firm conviction that a mistake has been made.

Therefore, we must be convinced from the record in the particular case that the mistake was made. Collateral considerations as to what some other trial court or any appellate court may have thought about some state of facts in a different case more or less remotely analogous are not proper for consideration.

Here our colleagues seem to rely, not on the record as a whole upon which the trial court based its judgment, but upon such remote analogies. Reliance is placed by them upon inferences drawn from the attitudes of other courts in a series of cases painstakingly accumulated by Judge Barnes which they feel command findings of fact contrary to those actually found by the…