CASES PASSED UPON CASES IN THE UNITED STATES CIRCUIT COURTS OF APPEALS WHICH HAVE BEEN Benner Line v. Pendleton, 133 C. C. A. 349. | Moyer v. Butte Miners' Union, 158 C. C. A. Writ of certiorari. Decree affirmed, March 25, 1918, 38 S. Ct. 330. Bryan v. Louisville & N. R. Co., 157 C. C. A. 98. Error. Writ of error dismissed and certiorari denied, March 18, 1918, 38 S. Ct. 334. Capital Sav. Bank & Trust Co. v. Inhabitants of Town of Framingham, 158 C. C. A. 523. Writ of certiorari. Certiorari denied, March 11, 1918, 38 S. Ct. 332. Eastern Oregon Land Co. v. Deschutes, 158 C. C. A. 464. Writ of certiorari. Certiorari denied, January 21, 1918, 38 S. Ct. 192, 245 U. S. 672, 62 L. Ed. International Curtis Marine Turbing Co. v. William Cramp & Sons Ship & Engine Bldg. Co., 151 C. C. A. 500. Writ of certiorari. Order affirmed, March 4, 1918, 38 S. Ct. 271. Joseph Schlitz Brewing Co. v. Houston Ice & Brewing Co., 154 C. C. A. 519. Writ of certiorari. Certiorari granted, March 4, 1918, 38 S. Ct. 316. Macbeth-Evans Glass Co. v. General Electric Co., 158 C. C. A. 651. Writ of certiorari. Certiorari denied, March 4, 1918, 38 S. Ct. 316. McClintic-Marshall Const. Co. v. Forgy, 158 C. C. A. 353. Writ of certiorari. Certiorari de nied, March 11, 1918, 38 S. Ct. 332. Marconi Wireless Telegraph Co. of America v. Simon, 145 C. C. A. 656. Writ of certiorari. Decree reversed, March 4, 1918, 38 S. Ct. 275. Marland v. Philadelphia & R. Ry., 158 C. C. A. 317. Writ of certiorari. Certiorari denied, January 14, 1918, 38 S. Ct. 191, 245 U. S. 671, 62 L. Ed. Michigan Cent. R. Co. v. United States, 158 C. C. A. 417. Writ of certiorari. Certiorari denied. March 11, 1918, 38 S. Ct. 333. 158 C.C.A. 613. Writ of certiorari. Certiorari denied, January 14, 1918, 38 S. Ct. 191, 245 U. S. 671, 62 L. Ed. National Surety Co. v. United States, 143 C. C. A. 99. Error. Judgment reversed, March 4, 1918, 38 S. Ct. 250. New v. United States, 158 C. C. A. 112. Writ of certiorari. Certiorari denied, March 18, 1918, 38 S. Ct. 334. Norfolk County Water Co. v. City of Norfolk, Va., 158 C. C. A. 606. Writ of certiorari. Certiorari denied, January 21, 1918, 38 S. Ct. 192, 245 U. S. 672, 62 L. Ed. O. & W. Thum Co. v. Dickinson, 158 C. C. A. 37. Writ of certiorari. Certiorari denied, March 18, 1918, 38 S. Ct. 334. W. A. Gaines & Co. v. Rock Spring Distilling Co., 141 C. C. A. 287. Writ of certiorari. Decree reversed, March 18, 1918, 38 S. Ct. 327. CASES ARGUED AND DETERMINED IN THE UNITED STATES CIRCUIT COURTS OF APPEALS (245 Fed. 1) LEWELLYN, Internal Revenue Collector, v. GULF OIL CORP. (Circuit Court of Appeals, Third Circuit. No. 2254. October 8, 1917.) 1. INTERNAL REVENUE 9-CORPORATIONS-INCOME TAXES. Though a corporation and a number of subsidiary corporations all of whose stock (except directors' shares) it owned were engaged in a common enterprise, where the corporation and each of the subsidiaries attended to its own branch of the enterprise, and each of the subsidiary corporations owned its own assets, carried on its own business, owed its own debts, paid its own taxes and enjoyed its own income, there was no such identity between the main corporation and the subsidiaries as to render a dividend received by the main corporation from the subsidiaries nontaxable under Corporation Excise Act Aug. 5, 1909, c. 6, 36 Stat. 112, and Income Tax Act Oct. 3, 1913, c. 16, 38 Stat. 114. 2. INTERNAL REVENUE 9-CORPORATIONS-INCOME TAXES. Where the subsidiary corporations had accumulated earnings, none of which had become capital, but which had been used in carrying on the several enterprises in which the companies were engaged, but which had been sometimes used to aid others of the subsidiary corporations, instead of being used to promote the particular business that had earned them, and the subsidiary corporations declared dividends, which were not paid in cash, but were paid by the main corporation taking over the debtor and creditor accounts existing among the subsidiary corporations, the property received by it was received as a dividend, and was taxable under the Corporation Excise Act of 1909 and the Income Tax Act of October 3, 1913: it being immaterial that one of the stockholders received almost all of the dividend, or that the stockholder in question was itself a corporation, and not an individual. In Error to the District Court of the United States for the Western District of Pennsylvania; Charles P. Orr, Judge. Action by the Gulf Oil Corporation against C. G. Lewellyn, Collector of Internal Revenue. Judgment for plaintiff (242 Fed. 709), and defendant brings error. Reversed, with instructions. E. Lowry Humes and B. B. McGinnis, both of Pittsburgh, Pa., for plaintiff in error. J. H. Beal and W. A. Seifert, both of Pittsburgh, Pa. (Reed, Smith, Shaw & Beal, of Pittsburgh, Pa., of counsel), for defendant in error. Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 158 C.C.A.-1 MCPHERSON, Circuit Judge. In this suit the Gulf Oil Corporation seeks to recover the taxes for 1913 that were assessed against it under the act of October 3, 1913. Payment was made under protest, and repayment was refused by the Commissioner of Internal Revenue. The Corporation recovered a judgment of $128,524.95. 242 Fed. 709. The trial was without a jury, and for convenience we repeat here the findings of fact in the District Court: "(1) The Gulf Oil Corporation is a corporation duly organized under the laws of the state of New Jersey. C. G. Lewellyn is the collector of internal revenue for the Twenty-Third district of Pennsylvania, being duly commissioned as such pursuant to the laws of the United States of America. "(2) The Gulf Oil Corporation, on the 14th day of February, 1914, in compliance with the provisions of the act of Congress of October 3, 1913, made a return of its annual net income for the 12 months ending December 31, 1913, as required by said act. In making said return the Gulf Oil Corporation certified that it had not included in the statement of gross income for the year 1913 certain dividends, amounting to $11,424,440, received by it from subsidiary companies out of earnings and surplus of said subsidiary companies accrued prior to January 1, 1913. "(3) In said return the Gulf Oil Corporation showed net income for the 12 months ending December 31, 1913, of $886,250.44, but under date of May 1, 1914, the said C. G. Lewellyn, collector, mailed to said corporation notice of an assessment of tax thereon amounting to $9,072.56. A claim for abatement of this overcharge, amounting to $210.06, was filed with the collector June 9, 1914, and on June 30, 1914, the Gulf Oil Corporation paid to the said C. G. Lewellyn, collector, the sum of $8,862.50, being the amount of said assessment, less the $210.06 for which abatement was claimed. Said claim for abatement having been disallowed, said Gulf Oil Corporation, on the 5th day of November, 1914, paid the said collector the additional sum of $210.06, with interest amounting to $6.30, making a total payment of $216.36. "(4) On the 30th day of December, 1914, the said C. G. Lewellyn, collector, acting under instructions from the Commissioner of Internal Revenue at Washington, D. C., mailed notice and demand for tax assessment against the Gulf Oil Corporation for the year ending December 31, 1913, amounting to $114,034.34. In fact, this additional assessment amounted to $114,244.40, being the 1 per cent. upon the entire amount of the dividends received by the Gulf Oil Corporation from subsidiary companies out of surplus accrued to such subsidiaries prior to January 1, 1913, and payable to the Gulf Oil Corporation prior to March 1, 1913, and said additional assessment was based solely on said dividends. In making the assessment, however, the Commissioner of Internal Revenue reconsidered and allowed the previous claim or abatement of $210.06, erroneously assessed against the corporation in the original assessment, and credited the same as having been paid upon the assessment of December 30, 1914, leaving the net balance of such assessment $114,034.34 as stated. "(5) The notice and demand of the said C. G. Lewellyn, collector, for the payment of this additional tax recited that if the tax is not paid on or before January 8, 1915, it would be the duty of the collector to collect said tax, together with 5 per cent. additional and interest at the rate of 1 per cent. per month until paid. "(6) That subsequently the plaintiff filed with the defendant for presentation to the Commissioner of Internal Revenue a claim for the abatement of said income tax amounting to $114.034.34, a copy of which claim is attached to and made a part of plaintiff's statement as Exhibit A. That after an examination of said claim for abatement the Commissioner of Internal Revenue rejected the same. "(7) On February 17, 1915, the said Gulf Oil Corporation paid to the said C. G. Lewellyn, collector, said additional income taxes assessed for the period ending December 31, 1913, in the sum of $114,034.34, and at the same time filed with said C. G. Lewellyn a written protest, a copy of which protest is attached to and made a part of plaintiff's statement as Exhibit B. |