Jack Showell and Dorothy Showell v. Commissioner of Internal Revenue

This court appreciates that it is not a trial court. But it is sorely troubled with Showell’s Exhibit 3, the only bookkeeping record 1 ever produced by him for the agents of the Commissioner or before the Tax Court as representing his income for the year 1949.

The exhibit is an accountant’s sheet of yellow work paper. In the first column are dates. The second column is entitled “gain” and the third column “loss.” The entries for 22 days indicate gain. The entries for 15 days indicate loss.

The document, per se, has not been directly attacked at any stage. In our former opinion we questioned it slantwise, particularly in a footnote and again in our memorandum on the petition for rehearing.

To us, untrained but with fair eyesight, the sheet looks like a recapitulation prepared in about three installments. The entries from January 1 to December .7 at least, on the best inspection we can give the document, appear to have been written successively at one sitting with the same sharp but fairly soft pencil. Then, beginning with December 17 and running through December 23, the gains seems to have been written with a sharp, hard pencil, again with the same arresting uniformity of…

(dissenting).

My objection to the proposed disposition of this case as stated in the majority opinion is that I believe it cannot serve any useful purpose in view of the findings which the Tax Court has now made and from which I assume it will not find any reason to withdraw. I, too, have had a look at the handwriting on Exhibit 3. I am no handwriting expert, but I doubt that such an expert would be able, on the basis of the writing itself, to testify that most of the entries were made at one sitting. The rather uniform precision shown could well be characteristic of the careful writer whose handwriting is usually uniform in style and appearance. I think no possible finding on the points now referred back to the Tax Court can determine the outcome here.

The Tax Court after remand has now found that “the petitioner did not keep regular, adequate and permanent books and records of his handwriting transactions.” 1 This is elaborated in the Tax Court’s opinion where it adds that “Aside from Exhibit 3, the petitioner maintained no account or record with respect to money received by him in his betting transactions or the sums paid out to winning bettors during the year.” This means…

254 F.2d 461 Jack SHOWELL and Dorothy Showell, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 15710. United States Court of Appeals Ninth Circuit. April 14, 1958. McLane & McLane, W. Lee McLane, Jr., Phoenix, Ariz., for appellants. John N. Stull, Acting Asst. Atty. Gen., Theodore Taubeneck, Lee A. Jackson, Robert N. Anderson, Marvin Weinstein, Attorneys, Department of Justice, Washington, D. C., for appellee. Before HEALY, POPE and CHAMBERS, Circuit Judges. CHAMBERS, Circuit Judge. 1 This court appreciates that it is not a trial court. But it is sorely troubled with Showell's Exhibit 3, the only bookkeeping record 1 ever produced by him for the agents of the Commissioner or before the Tax Court as representing his income for the year 1949. 2 The exhibit is an accountant's sheet of yellow work paper. In the first column are dates. The second column is entitled "gain" and the third column "loss." The entries for 22 days indicate gain. The entries for 15 days indicate loss. 3 The document, per se, has not been directly attacked at any stage. In our former opinion we questioned it slantwise, particularly in a footnote and again in our memorandum on the petition…