Morrissey

This is a petition to review a decision of the Board of Tax Appeals sustaining, in part, a determination by the Commissioner of Internal Revenue that there were deficiencies in respect of petitioner’s income tax for 1932 and 1933.

Petitioner is an inheritance tax appraiser of the State of California. He appraises estates in probate for the state inheritance tax and for the probate court’s administration. His income for these services for the years in question consisted of a salary paid by the state, and fées, provided for by statute, paid out of the particular estates appraised.

The Board of Tax Appeals held that portion of petitioner’s compensation which was charged against and paid out of the estates was subject to tax.

The case was submitted prior to the overruling by the Supreme Court on March 27, 1939, in Graves et al. v. New York ex rel. O’Keefe, 1 of the doctrine of implied constitutional immunity of state officers’ compensation from federal taxation held in Collector v. Day, 11 Wall. 113 , 20 L.Ed. 122 . Three questions then were presented to us:

A. Did Congress by reenacting in 1932 the identical applicable provisions of the income tax statute of 1928 exempt from…