Opinion · Court of Appeals for the Third Circuit

Theodore F. Appleby and Marie W. Appleby v. Commissioner of Internal Revenue

Theodore F. Appleby & Marie W. Appleby v. Comm’r of Internal Revenue, 296 F.2d 925 (3d Cir. 1962)

Type
Opinion
Court
Court of Appeals for the Third Circuit
Jurisdiction
Federal
Date
1962-01-10
Topic
general

PER CURIAM. The decisive fact issue here is whether petitioners have met the “active business” requirement of Section 355 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 355 so as to have the distribution of the stock of the wholly owned subsidiary qualify as a non-taxable distribution. While the Tax Court decision could have gone the other way there is ample evidence in the record to support it; certainly we cannot say that it is clearly wrong. The decision of the Tax Court, 35 T.C. 755, will be affirmed.

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Authority status
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Cited by
3 opinions
APPLEBY v. COMMISSIONER OF INTERNAL REVENUE,296 F.2d 925(3rd Cir. 1962)
Theodore F. APPLEBY and Marie W. Appleby, Petitioners, v. COMMISSIONER OF
INTERNAL REVENUE, Respondent.
No. 13690.
United States Court of Appeals, Third Circuit.
Argued December 22, 1961.
Decided January 10, 1962.
On Petition for Review of the Decision of the Tax Court of the United States.
Robert V. Carton, Asbury Park, N.J. (Durand, Ivins Carton, Asbury Park, N.J., on the brief), for petitioners.

Douglas A. Kahn, Washington, D.C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, A.F. Prescott, Attorneys, Department of Justice, Washington, D.C., on the brief), for respondent.
Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
PER CURIAM.
The decisive fact issue here is whether petitioners have met the "active business" requirement of Section355of the Internal Revenue Code of 1954, 26 U.S.C.A. § 355 so as to have the distribution of the stock of the wholly owned subsidiary qualify as a non-taxable distribution. While the Tax Court decision could have gone the other way there is ample evidence in the record to support it; certainly we cannot say that it is clearly wrong.

The decision of the Tax Court,35 T.C. 755, will be affirmed.