Keneipp v. United States

D.C. Circuit

Keneipp v. United States

203 F.2d 397, 92 U.S. App. D.C. 187, 43 A.F.T.R. (P-H) 690, 1953 U.S. App. LEXIS 4203

CourtCourt of Appeals for the D.C. Circuit

DecidedApril 2, 1953

Docket11532_1

StatusPublished

Cited by2 cases

This text of 203 F.2d 397 (Keneipp v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. 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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Keneipp v. United States, 203 F.2d 397, 92 U.S. App. D.C. 187, 43 A.F.T.R. (P-H) 690, 1953 U.S. App. LEXIS 4203 (D.C. Cir. 1953).

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Opinion

PER CURIAM.

This appeal involves a suit in the District Court to recover an overpayment of federal income taxes. On a prior appeal, 1950, 87 U.S.App.D.C. 242, 184 F.2d 263, the principal question was whether a gain upon a condemnation award was a capital gain. This depended upon whether the property was “used in trade or business” or was “held for the production of income.” 1 We remanded for further proceedings and findings. The District Court took additional evidence and found that part of the property was “used in trade or business,” and the “gain” to be ordinary income. A recomputation upon that basis for the year 1941 resulted in findings of a tax of $1307.98 and a total refund of $1931.53, plus statutory interest, for which judgment was entered.

On this appeal error is assigned in the taking of additional evidence. We think such action was permissible. Appellants also attack the findings in some particulars. However, they failed to bring to this court any record of the evidence upon which the findings were based. Therefore, we must assume that there was evidence to support the findings, 2 and in the absence of evidence showing them to be clearly erroneous, we must affirm. 3

So ordered.

1

. U.S.Treas.Regs. 111, § 29.117-1 (1943).

2

. Canal Bank v. Hudson, 1884, 111 U.S. 60, 4 S.Ct. 303, 28 L.Ed. 354; Griffith’s Dairy v. Squire, 9 Cir., 1943, 138 F.2d 758; Kentucky Natural Gas Corp. v. Indiana Gas & Chemical Corp., 7 Cir., 1942, 129 F.2d 17, 143 A.L.R. 484; Evergreen Cemetery Ass’n v. Burnet, 1930, 59 App. D.C. 397, 45 F.2d 667.

3

. Fed.R.Civ.Proc. 52(a), 28 U.S.C. (1946 ed.); United States v. Yellow Cab Co., 1949, 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150; United States v. U. S. Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; Santucci v. Pignatello, 1951, 88 U.S.App.D.C. 190, 188 F.2d 643; Remington Rand Inc. v. Societe Internationale, 1951, 88 U.S.App.D.C. 275, 188. F.2d 1011.

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PER CURIAM.

This appeal involves a suit in the District Court to recover an overpayment of federal income taxes. On a prior appeal, 1950, 87 U.S.App.D.C. 242, 184 F.2d 263, the principal question was whether a gain upon a condemnation award was a capital gain. This depended upon whether the property was “used in trade or business” or was “held for the production of income.” 1 We remanded for further proceedings and findings. The District Court took additional evidence and found that part of the property was “used in trade or business,” and the “gain” to be ordinary income. A recomputation upon that basis for the year 1941 resulted in findings of a tax of $1307.98 and a total refund of $1931.53, plus statutory interest, for which judgment was entered.

On this appeal error is assigned in the taking of additional evidence. We think such action was permissible. Appellants also attack the findings in some particulars. However, they failed to bring to this court any record of the evidence upon which the findings were based. Therefore, we must assume that there was evidence to support the findings, 2 and in the absence of evidence showing them to be clearly erroneous, we must affirm. 3

So ordered.

1

. U.S.Treas.Regs. 111, § 29.117-1 (1943).

2

. Canal Bank v. Hudson, 1884, 111 U.S. 60, 4 S.Ct. 303, 28 L.Ed. 354; Griffith’s Dairy v. Squire, 9 Cir., 1943, 138 F.2d 758; Kentucky Natural Gas Corp. v. Indiana Gas & Chemical Corp., 7 Cir., 1942, 129 F.2d 17, 143 A.L.R. 484; Evergreen Cemetery Ass’n v. Burnet, 1930, 59 App. D.C. 397, 45 F.2d 667.

3

. Fed.R.Civ.Proc. 52(a), 28 U.S.C. (1946 ed.); United States v. Yellow Cab Co., 1949, 338 U.S. 338, 70 S.Ct. 177, 94 L.Ed. 150; United States v. U. S. Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; Santucci v. Pignatello, 1951, 88 U.S.App.D.C. 190, 188 F.2d 643; Remington Rand Inc. v. Societe Internationale, 1951, 88 U.S.App.D.C. 275, 188. F.2d 1011.

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203 F.2d 397, 92 U.S. App. D.C. 187, 43 A.F.T.R. (P-H) 690, 1953 U.S. App. LEXIS 4203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keneipp-v-united-states-cadc-1953.

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