De Nobili Cigar Co. v. Commissioner of Internal Rev.

Second Circuit

De Nobili Cigar Co. v. Commissioner of Internal Rev.

143 F.2d 436, 32 A.F.T.R. (P-H) 989, 1944 U.S. App. LEXIS 3102

CourtCourt of Appeals for the Second Circuit

DecidedJune 20, 1944

Docket92

StatusPublished

Cited by2 cases

This text of 143 F.2d 436 (De Nobili Cigar Co. v. Commissioner of Internal Rev.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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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De Nobili Cigar Co. v. Commissioner of Internal Rev., 143 F.2d 436, 32 A.F.T.R. (P-H) 989, 1944 U.S. App. LEXIS 3102 (2d Cir. 1944).

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Opinion

FRANK, Circuit Judge.

1. We adhere to our ruling in Patty v. Helvering, 2 Cir., 98 F.2d 717, i.e., that, under § 115(g), [26 U.S.C.A. Int.Rev.Acts, page 385], redeemed shares are the equivalent of dividends if and only if the shares were not issued for genuine business purposes. The Tax Court has found that here the shares were not so issued, and we agree. In any event, this is the kind of case which comes within Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239; see Wilmington Trust Co. v. Helvering, 316 U.S. 164, 168, 62 S.Ct. 984, 86 L.Ed. 1352; Fuld v. Commissioner, 2 Cir., 139 F.2d 465, 467. We also agree with the Tax Court that distributions *442 which are the equivalent of dividends under § 115(g) are “dividends” within §§ 143 and 211.

2. We need not consider whether Parker v. United States, 7 Cir., 88 F.2d 9Ó7 is correct. For, even assuming arguendo that it is, taxpayer here must lose. The Tax Court correctly held that there was no presumption that any of the transferees of the shares distributed to stockholders were purchasers for value; that, if the Parker rule is valid, petitioner had the burden of proof on that issue; and that petitioner had not discharged that burden.

Affirmed.

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FRANK, Circuit Judge.

1. We adhere to our ruling in Patty v. Helvering, 2 Cir., 98 F.2d 717, i.e., that, under § 115(g), [26 U.S.C.A. Int.Rev.Acts, page 385], redeemed shares are the equivalent of dividends if and only if the shares were not issued for genuine business purposes. The Tax Court has found that here the shares were not so issued, and we agree. In any event, this is the kind of case which comes within Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239; see Wilmington Trust Co. v. Helvering, 316 U.S. 164, 168, 62 S.Ct. 984, 86 L.Ed. 1352; Fuld v. Commissioner, 2 Cir., 139 F.2d 465, 467. We also agree with the Tax Court that distributions *442 which are the equivalent of dividends under § 115(g) are “dividends” within §§ 143 and 211.

2. We need not consider whether Parker v. United States, 7 Cir., 88 F.2d 9Ó7 is correct. For, even assuming arguendo that it is, taxpayer here must lose. The Tax Court correctly held that there was no presumption that any of the transferees of the shares distributed to stockholders were purchasers for value; that, if the Parker rule is valid, petitioner had the burden of proof on that issue; and that petitioner had not discharged that burden.

Affirmed.

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143 F.2d 436, 32 A.F.T.R. (P-H) 989, 1944 U.S. App. LEXIS 3102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-nobili-cigar-co-v-commissioner-of-internal-rev-ca2-1944.

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