Parker

The above entitled cause heretofore tried, argued and submitted is now decided as follows:

Judgment will be for the defendant, that the plaintiff take nothing by the complaint.

Costs to the defendant. Findings and judgment to be prepared by counsel for the defendant under local Rule 7.

Comment

This is another family partnership case in which plaintiff seeks to recover income taxes for the fiscal years ending October 31, 1945, 1946, 1947 and 1948. A case involving the tax for the fiscal year ending October 31, 1944, decided by a jury against the taxpayer, was affirmed on appeal. Parker v. Westover, 9 Cir., 1950, 186 F.2d 49 .

When the present case first came before me, on being informed that no new facts existed for the years under consideration, I sustained ‘without the taking of any testimony’ the plea of the Government that the judgment as to the year 1944 was res judicata. That ruling was reversed on appeal. Parker v. Westover, 9 Cir., 1955, 221 F.2d 603 . The case has now been tried and the facts fully presented and argued. They appear in the Findings printed as Appendix A, at the end of this opinion.

There is a tendency in some Courts of Appeals to assume that because…