Commissioner of Internal Revenue v. Estate of Oscar Weinreich, Deceased, Geraldine Snyder Weinrich v. Commissioner of Internal Revenue

316 F.2d 97 63-1 USTC P 9420 COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. ESTATE of Oscar WEINREICH, Deceased, et al., Respondents. Geraldine Snyder WEINRICH, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 17930. United States Court of Appeals Ninth Circuit. April 3, 1963. 1 Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Stephen B. Wolfberg and C. Moxley Featherstone, Department of Justice, Washington, D.C., for petitioner-respondent. 2 George T. Altman, Beverly Hills, Cal., for respondent-petitioner. 3 Before CHAMBERS and HAMLIN, Circuit Judges, and CRARY, District Judge. 4 CRARY, District Judge. 5 The question involved in this consolidated proceeding is whether the mitigation provisions of 1311-1315 of the Internal Revenue Code of 1954 permit assessment and collection of certain deficiencies which would otherwise be barred by the statute of limitations. 6 The relevant facts are established by stipulation of the parties (pages 33 through 39, Tr. of R.) and pertinent matters set forth as Findings in Snyder v. Westover (U.S.D.C.S.D.Calif., 1952) 107 F.Supp. 363 , and Snyder v. Riddell (U.S.D.C.S.D.Calif., 1957) 52 A.F.T.R. 1776 . It was…

The question involved in this consolidated proceeding is whether the mitigation provisions of §§ 1311-1315 of the *99 Internal Revenue Code of 1954 permit assessment and collection of certain deficiencies which would otherwise be barred by the statute of limitations.

The relevant facts are established by stipulation of the parties (pages 33 through 39, Tr. of R.) and pertinent matters set forth as Findings in Snyder v. Westover (U.S.D.C.S.D.Calif., 1952) 107 F.Supp. 363 , and Snyder v. Riddell (U.S.D.C.S.D.Calif., 1957) 52 A.F.T.R. 1776 . It was further agreed that the stipulation was not intended to be in conflict but was subject to the decisions and opinions of this court in Snyder v. Westover (C.A. 9th, 1954) 217 F.2d 928 ; Snyder v. Riddell (C.A. 9th, 1958) 252 F.2d 23 , and Snyder v. United States (C. A. 9th, 1958) 260 F.2d 826 .

A summary of the facts relevant to these proceedings is as follows:

It is agreed by the parties that the assessment and collection of the deficiencies as against Geraldine and Oscar are barred by the statute of limitations unless they qualify as “adjustments” timely made within the mitigation provisions of §§ 1311-1315 of the 1954 Code, the…

(concurring).

I concur in affirming the decision of the tax court as to the petition of Geraldine Weinrich as the executor of the estate of Oscar Weinreich.

As to Geraldine individually, I agree that the tax court decision should be reversed and that the assessed deficiency *106 in income tax due for the taxable year 1945 should be cancelled. I reach this result primarily on the basis that I believe Sam Snyder first maintained the inconsistent position in March, 1950, when he filed claim for refund of taxes for the years 1943 through 1946. Under the statute [ 26 U.S.C. § 1311 (b) (3)] this circumstance alone would prevent the commissioner from collecting the assessed deficiency inasmuch as Geraldine was not a related taxpayer (in a tax sense) during 1950. It therefore would appear unnecessary to decide whether the “determination” under 26 U.S.C. § 1312 (3) occurred in the Westover suit, or in the second Riddell suit.

In the search for the case with the “first determination” Judge Crary may be correct that it was “Westover,” but it is a close issue vis-a-vis the second Rid-dell case.