296 F2d 925 Appleby v. Commissioner of Internal Revenue

296 F.2d 925

62-1 USTC P 9178

Theodore F. APPLEBY and Marie W. Appleby, Petitioners,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 13690.

United States Court of Appeals Third Circuit.

Argued Dec. 22, 1961.
Decided Jan. 10, 1962.

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.

On Petition for Review of the Decision of the Tax Court of the United States.

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

PER CURIAM.

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1

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. Sec. 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.

2

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