264 F2d 230 Carpenter Company v. Commissioner of Internal Revenue

264 F.2d 230

59-1 USTC P 9312

L. E. CARPENTER & COMPANY, Petitioner,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 12686.

United States Court of Appeals Third Circuit.

Argued Feb. 16, 1959.
Filed March 11, 1959.

Jacquin D. Bierman, New York City, for petitioner.

Harry Marselli, Washington, D.C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Attorney, Department of Justice, Washington, D.C., on the brief), for respondent.

Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit judges.

PER CURIAM.

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1

We think it is clear that we lack jurisdiction to review the decision of the Tax Court, 1957, 29 T.C. 562. The decision of Judge Mulroney was reviewed by a Special Division of the Tax Court, as required by Section 732(d), Internal Rev.Code of 1939, 26 U.S.C. 732(d) (1952), 26 U.S.C.A. Excess Profits Taxes, 732(d), and was affirmed. The decision of the Tax Court sought to be reviewed here relates exclusively to a question arising under and determinable solely under Section 721(a)(2)(C) of the Internal Revenue Code of 1939. See 26 U.S.C. 721(a)(2)(C) (1952), 26 U.S.C.A. Excess Profits Taxes, 721(a)(2)(C). Section 732(c) of the Internal Revenue Code of 1939 provides that if 'the determination of any question is necessary solely by reason of * * * section 721 * * * such question shall not be reviewed or redetermined by any court or agency' except the Tax Court.

2

The prohibition of Section 732(c) of any review of decisions of the Tax Court respecting 'abnormalities' or relief issues under the law, such as is presented here, has now, we believe, been universally recognized. The sole exception was Helms Bakeries v. Commissioner, 9 Cir., 1956, 236 F.2d 3, but that decision was overruled by the Court of Appeals for the Ninth Circuit itself by its decision in Helms Bakeries v. Commissioner, 1959, 263 F.2d 642. See Colonial Amusement Co. of Philadelphia v. Commissioner, 3 Cir., 1949, 173 F.2d 568; Crowell-Collier Pub. Co. v. Commissioner, 2 Cir., 1958, 259 F.2d 860, certiorari denied, 1959, 358 U.S. 928, 79 S.Ct. 314, 3 L.Ed.2d 302; Standard Hosiery Mills, Inc. v. Commissioner, 4 Cir., 1957, 249 F.2d 469; Brown Paper Mill Co. v. Commissioner, Cir., 1958, 255 F.2d 77, certiorari denied, 1958, 358 U.S. 906, 79 S.Ct. 229, 3 L.Ed.2d 227; Patent Button Co. of Tenn. v. Commissioner, 6 Cir., 1958, 256 F.2d 726; James F. Waters, Inc. v. Commissioner, 9 Cir., 1947, 160 F.2d 596, certiorari denied, 1947, 332 U.S. 767, 68 S.Ct. 77, 92 L.Ed. 353; and Colorado Milling & Elevator Co. v. Commissioner, 10 Cir., 1953, 205 F.2d 551.