Bower Slack Broaddus

“That being so the request was for an adjudication of facts immaterial to the case and presumptively without any supporting evidence. Aetna also moved for an ascertainment by the Court of the value of the salvage of the property damaged by the fire. The jury, in answer, to an interrogatory, fixed ‘the loss suffered by the plaintiff on the property covered by the policy’ in a definite amount. We do not and may not assume that the value of the salvage was not considered by the jury and excluded from this amount. The judgment is affirmed.”

“The Plaintiffs are entitled to recover of and from the Defendant the following amounts of surtax on undistributed profits paid by the Company with respect to the following years: 1936 $2,706 06 1937 750.82 together with interest thereon at the rate of six per cent (6%) per annum from the respective dates of payment of such amounts. 12. To all adverse findings of fact and conclusions of law the Defendant duly excepts, which exceptions are duly allowed.”

“The Clifton case as decided by the Tenth Circuit governs the result of this case and requires judgment for the plaintiffs inasmuch as we are cited to no case, and independent searching discloses none, that may be taken as either impliedly or expressly overruling it. Judgment will be entered in keeping with these findings of fact and conclusions of law as of the date of their filing, this the 12th day of August, 1947.”

“The court finds all issues of law in favor of the plaintiff, E. K. Gaylord, owner of the Gaylord Guernsey Farms and against the defendant, H. C. Jones, Collector of Internal Revenue of the District of Oklahoma. To all of which the defendant excepts and exceptions are allowed.”

“It follows that the death for which the beneficiary sought recovery was not within the terms of the rider to the policy, and there may be no recovery. The judgment of the lower court is affirmed.”

“It follows that the profits from the sales were long term capital gains as distinguished from’ ordinary income. Fahs, Collector, v. Crawford et al., 5 Cir., 161 F.2d 315; Three States Lumber Co. v. Commissioner, supra; Kanawha Valley Bank v. Commissioner, supra; Estate of Kleberg v. Commissioner, supra; Farley v. Commissioner, 7 T.C. 198. Judgment will be entered as of the date of the filing of these findings of fact and conclusions of law, this 17th day of May, 1947.”

“The court concludes as a matter of law— (a) The unprecedented and unusual drought is a ‘casualty’ within the meaning of Section 23(e) (3) of the Revenue Act of 1936, 26 U.S.C.A. § 23(e) (3). 1 (b) Whatever loss the plaintiff suffered was fixed in the year 1936, 2 and it is not necessary that plaintiff sell or dispose of the land in order to determine such loss. 3 (c) The deductible loss is the difference between the value of the estate immediately preceding the casualty and the value after the casualty but not in excess of an amount equal to the adjusted basis of the estate, 4 and in determining such loss the trees and shrubbery should be treated as an integral part of the estate and no separate basis apportioned thereto. 5 (d) Burden of proving deductible loss is on the plaintiff, 6 and there is no proper evidence in the case by which the court may determine the loss of the plaintiff. 7 1 . Matheson v. Commissioner, 2 Cir., 54 F.2d 537; Hale v. Welch, D.C., 38 F.Supp. 754; Whipple v. United States, D.C., 25 F.2d 520; Mary Cheney Davis v. Commissioner, 16 B.T.A. 65; John S. Hall et al. v. Commissioner, 16 B.T.A. 71; Shearer v. Anderson, 2 Cir., 16 F.2d 995. 2 . Dayton Co. v. Commissioner of Internal Revenue, 8 Cir., 90 F.2d 767; Ferguson v. Commissioner of Internal Revenue, 10 Cir., 59 F.2d 893, 894; 3 . Dayton Co. v. Commissioner of Internal Revenue, supra, 90 F.2d at page 771. See also Whipple v. United States and Shearer v. Anderson, supra, no sale being had in either ease. 4 . Whipple v. United States; Mary Cheney Davis v. Commissioner; John S. Hall et al v. Commissioner, supra; Frederick H. Nash v. Commissioner, 22 B.T.A. 482; Helvering, Commissioner of Internal Revenue v. Owens et al., 305 U.S. 468, 59 S.Ct. 260, 83 L.Ed. 292; See also 17 C.J. 891; 25 C.J.S., Damage, § 85. 5 . Harry Johnston Grant v. Commissioner, 30 B.T.A. 1028; Whipple v. United States, supra, no separate apportionment had. 6 . Reinecke v. Spalding, 280 U.S. 227, 233, 50 S.Ct. 96, 74 L.Ed. 385; Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 413, 75 L.Ed. 991; Paul & Mertens, Law of Income Taxation, vol. 3, p. 253, § 26: 28. 7 . Mary Cheney Davis v. Commissioner; Harry Johnston Grant v. Commissioner; Whipple v. United States, Supra.”

“The court concludes that the plaintiffs are not entitled to recover anything ■of the defendant, but if the court should be in error in that conclusion and should the plaintiffs be entitled to recover overtime ■ compensation for any of the hours worked for the defendant, they would also be entitled to recover a reasonable attorney’s fee and the court concludes that such recovery is not barred by limitations. Let journal entry of judgment be entered in accordance with the court’s find-tings and conclusions of law.”

“The parties concede that there was a miscalculation of interest in the amount of $2,07.94 and judgment' for, the plaintiff will be entered in this, amount. Judgment will be entered in accord with thpse findings of fact and conclusions of law as of this the date of their filing, the 23rd day of April,. 1949.. ,• , •”

“We conclude that an offense against the laws of the United States is shown by the facts of the information and stipulation. As the plea of the Anchor Liquor Company admits such facts the sentence must be affirmed.”

“The court is without jurisdiction and for that reason the cause will be dismissed. The facts excusing performance by Stamey were found in order to permit a final determination of the cause on appeal. Judgment will be entered dismissing the cause as of the date of the filing of these findings and conclusions, this the 12th day of April, 1948.”

“By analogy, the movement from the storage tanks to the point where the pumps forced the oil into the trunk line of the pipe line carrier is also a taxable movement. Though either movement is subject to the tax, only one tax may be imposed under the regulations for the movement of oil in a gathering service. Judgment for the defendant will be entered as of the. date of the filing of these findings of fact and conclusions of law, this the 22d day of September, 1948. In 1948 Revision, 28 U.S.C.A. § 1331 et seq.”