233 F2d 908 Richmond Hosiery Mills v. Commissioner of Internal Revenue

233 F.2d 908

56-2 USTC P 9644

RICHMOND HOSIERY MILLS, Petitioner,

v.

COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 15875.

United States Court of Appeals Fifth Circuit.

June 5, 1956.

Joseph B. Brennan, Atlanta, Ga., Sutherland, Asbill & Brennan, Atlanta, Ga., of counsel, for petitioner.

Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Atty. Gen., Harry Baum, S. Dee Hanson, John Potts Barnes, Chief Counsel, Int. Rev. Service, Claude R. Marshall, Sp. Atty., for respondent.

Before HUTCHESON, Chief Judge, and RIVES and JONES, Circuit Judges.

PER CURIAM.

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1

This appeal involves claimed deficiencies in excess profit taxes for the years 1942, and 1944-1945. Persisting, despite its reversal in Owensboro Wagon Co. v. Commissioner, 6 Cir., 209 F.2d 617, in adhering to its decision, that stock dividends distributed prior to March 1, 1913, are not includible in equity invested capital under § 718(a)(3) of the Internal Revenue Code, 26 U.S.C.A. Excess Profits Taxes, page 143, the Tax Court sustained the Commissioner's determination, excluding such stock dividends.

2

Appealing from that decision, taxpayer is here insisting that, for the reasons set forth in its brief and upon the authority of the Owensboro case, to which may now be added the decision, on April 4, 1956, of the Seventh Circuit, 231 F.2d 536, affirming Baker Land & Title Co. v. United States, D.C., 126 F.Supp. 561, the Tax Court's decision was wrong and must be reversed.

3

We agree with petitioner and with the results reached and the reasons given therefor in the two opinions relied on by it. Because we do, we will not further labor the matter here, but, noting our agreement with those opinions and our disagreement with the Tax Court, we order its judgment reversed and the cause remanded for further proceedings not inconsistent herewith.