Lawrence B. Fabacher and Mary A. Fabacher v. United States

Fifth Circuit

Lawrence B. Fabacher and Mary A. Fabacher v. United States

454 F.2d 722, 29 A.F.T.R.2d (RIA) 494, 1972 U.S. App. LEXIS 11646

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 25, 1972

Docket71-2042

StatusPublished

This text of 454 F.2d 722 (Lawrence B. Fabacher and Mary A. Fabacher v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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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Lawrence B. Fabacher and Mary A. Fabacher v. United States, 454 F.2d 722, 29 A.F.T.R.2d (RIA) 494, 1972 U.S. App. LEXIS 11646 (5th Cir. 1972).

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Opinion

PER CURIAM:

Taxpayers in 1960 purchased United States Treasury bonds at a cost of $170,746.88, exchanged them in 1961 for Treasury notes with par value of $176,000.00 and redeemed them at par in 1964. They did not report any gain arising from the redemption in either 1961 or 1964. The Commissioner assessed a deficiency for 1964 after an audit of years 1962 through 1965 and for each of those years imposed the five per cent negligence penalty pursuant to § 6653(a) of the Internal Revenue Code. Taxpayers’ claim for refund was rejected, and in taxpayers’ suit for recovery of taxes erroneously assessed and collected the District Court entered judgment in the Government’s favor.

With the exception noted below we affirm pursuant to Local Rule 21. 1

The Government now concedes that its defense of variance between the taxpayers’ amended complaint and their claim for refund is inappropriate under the circumstances against taxpayers’ capital gains and equitable recoupment arguments and that the gain in issue should be treated as capital gain rather than ordinary income. Therefore, we vacate and remand to the District Court to enter judgment in accord with the Government’s concession.

Affirmed in part, vacated and remanded in part.

1

. See NLRB v. Amalgamated Clothing-Workers of America, 430 F.2d 966 (5th Cir. 1970).

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PER CURIAM:

Taxpayers in 1960 purchased United States Treasury bonds at a cost of $170,746.88, exchanged them in 1961 for Treasury notes with par value of $176,000.00 and redeemed them at par in 1964. They did not report any gain arising from the redemption in either 1961 or 1964. The Commissioner assessed a deficiency for 1964 after an audit of years 1962 through 1965 and for each of those years imposed the five per cent negligence penalty pursuant to § 6653(a) of the Internal Revenue Code. Taxpayers’ claim for refund was rejected, and in taxpayers’ suit for recovery of taxes erroneously assessed and collected the District Court entered judgment in the Government’s favor.

With the exception noted below we affirm pursuant to Local Rule 21. 1

The Government now concedes that its defense of variance between the taxpayers’ amended complaint and their claim for refund is inappropriate under the circumstances against taxpayers’ capital gains and equitable recoupment arguments and that the gain in issue should be treated as capital gain rather than ordinary income. Therefore, we vacate and remand to the District Court to enter judgment in accord with the Government’s concession.

Affirmed in part, vacated and remanded in part.

1

. See NLRB v. Amalgamated Clothing-Workers of America, 430 F.2d 966 (5th Cir. 1970).

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454 F.2d 722, 29 A.F.T.R.2d (RIA) 494, 1972 U.S. App. LEXIS 11646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawrence-b-fabacher-and-mary-a-fabacher-v-united-states-ca5-1972.

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