283 F2d 871 Schellenbarg v. Commissioner of Internal Revenue

283 F.2d 871

Herbert SCHELLENBARG and Clara Schellenbarg, Petitioners,

No. 14089.

United States Court of Appeals Sixth Circuit.

October 21, 1960.

William R. Seaman and Jerry L. Cowan, Cincinnati, Ohio, Frost & Jacobs, Cincinnati, Ohio, and William Harrelson, Faust & Harrelson, Troy, Ohio, on brief, for petitioner.

William Friedlander, Department of Justice, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Attorney, Department of Justice, Washington, D. C., on brief, for respondent.

Before McALLISTER, Chief Judge, and CECIL and O'SULLIVAN, Circuit Judges.


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The above cause coming on to be heard upon the record, the briefs of the parties and argument of counsel in open court, and the court being duly advised,


Now, therefore, it is ordered, adjudged and decreed that the decision of the Tax Court be and is hereby affirmed, except as to the double imposition of additions to tax, for failure to file an estimated tax return, and for substantial under-estimation of estimated tax. It is conceded by respondent that under the authority of Acker v. Commissioner of Internal Revenue, 6 Cir., 258 F.2d 568, affirmed by the Supreme Court in Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 80 S.Ct. 144, 4 L.Ed.2d 127, such double imposition of additions to tax is invalid. The case is, accordingly, remanded to the Tax Court for further proceedings not inconsistent with this opinion. 31 T.C. 1269.