Commissioner of Internal Revenue v. Philip J. Lo Bue

Third Circuit

Commissioner of Internal Revenue v. Philip J. Lo Bue

256 F.2d 735, 2 A.F.T.R.2d (RIA) 5128, 1958 U.S. App. LEXIS 5591

CourtCourt of Appeals for the Third Circuit

DecidedJuly 8, 1958

Docket12580_1

StatusPublished

Cited by5 cases

This text of 256 F.2d 735 (Commissioner of Internal Revenue v. Philip J. Lo Bue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commissioner of Internal Revenue v. Philip J. Lo Bue, 256 F.2d 735, 2 A.F.T.R.2d (RIA) 5128, 1958 U.S. App. LEXIS 5591 (3d Cir. 1958).

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Opinion

PER CURIAM.

This is an appeal from a decision of the Tax Court, rendered on remand from the Supreme Court. The Supreme Court held that options granted an employee to purchase stock of his corporate employer yielded him taxable gain which “should be measured as of the time the options were exercised * * *. ” 351 U.S. 243, 249, 76 S.Ct. 800, 804, 100 L.Ed. 1142. The Court concluded its opinion with this observation and direction. “It is possible that a bona fide delivery of a binding promissory note could mark the completion of the stock purchase and that gain should be measured as of that date. Since neither the Tax Court nor the Court of Appeals passed on this question the judgment is reversed and the case is remanded to the Court of Appeals with instructions to remand the case to the Tax Court for further proceedings.” 351 U.S. at page 250, 76 S.Ct. at page 804.

The Tax Court has now found that the option was exercised when the employee so advised the corporation and gave it his unconditional promissory note, payable at a future date, for the stock, although the certificates were not delivered until the notes were paid during the next taxable year. 28 T.C. 1317. In the circumstances of this case as outlined in the opinion of the Tax Court and for the reasons stated by the Tax Court we think this was a permissible and proper conclusion.

The judgment will be affirmed.

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PER CURIAM.

This is an appeal from a decision of the Tax Court, rendered on remand from the Supreme Court. The Supreme Court held that options granted an employee to purchase stock of his corporate employer yielded him taxable gain which “should be measured as of the time the options were exercised * * *. ” 351 U.S. 243, 249, 76 S.Ct. 800, 804, 100 L.Ed. 1142. The Court concluded its opinion with this observation and direction. “It is possible that a bona fide delivery of a binding promissory note could mark the completion of the stock purchase and that gain should be measured as of that date. Since neither the Tax Court nor the Court of Appeals passed on this question the judgment is reversed and the case is remanded to the Court of Appeals with instructions to remand the case to the Tax Court for further proceedings.” 351 U.S. at page 250, 76 S.Ct. at page 804.

The Tax Court has now found that the option was exercised when the employee so advised the corporation and gave it his unconditional promissory note, payable at a future date, for the stock, although the certificates were not delivered until the notes were paid during the next taxable year. 28 T.C. 1317. In the circumstances of this case as outlined in the opinion of the Tax Court and for the reasons stated by the Tax Court we think this was a permissible and proper conclusion.

The judgment will be affirmed.

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256 F.2d 735, 2 A.F.T.R.2d (RIA) 5128, 1958 U.S. App. LEXIS 5591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commissioner-of-internal-revenue-v-philip-j-lo-bue-ca3-1958.

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