George Kemp Real Estate Co. v. Commissioner of Internal Revenue

205 F.2d 236, 44 A.F.T.R. (P-H) 31, 1953 U.S. App. LEXIS 4465

• Court: Court of Appeals for the Second Circuit
• Decided: June 18, 1953
• Docket: 22373_1
• Status: Published

Opinion

205 F.2d 236

GEORGE KEMP REAL ESTATE CO.
v.
COMMISSIONER OF INTERNAL REVENUE.

No. 62.

Docket 22373.

United States Court of Appeals Second Circuit.

Argued May 6, 1953.

Decided June 18, 1953.

Alexander S. Andrews, New York City, for petitioner.

H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and Harry Marselli, Special Assts. to the Atty. Gen., for Commissioner of Internal Revenue, respondent.

Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.

PER CURIAM.

Since the Tax Court based its decision on the application as a matter of law of the doctrine of collateral estoppel, we have jurisdiction to review despite the provisions of § 732(c) of the Internal Revenue Code, 26 U.S.C.A. § 732(c). Compare H. Fendrich, Inc. v. Commissioner, 7 Cir., 192 F.2d 916 with George Kemp Real Estate Co. v. Commissioner, 2 Cir., 182 F.2d 847, certiorari denied 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624. The decision was not, in the language of the statute, "necessary solely by reason of section * * * 722."

The principles of collateral estoppel were correctly applied and the decision is affirmed on the opinion of the Tax Court, 17 T.C. 755.