316 F2d 241 McMakin v. C Hooks

316 F.2d 241

M. L. McMAKIN, Plaintiff-Appellee
v.
Gilbert C. HOOKS, District Director of Internal Revenue, Defendant-Appellant.

No. 14971.

United States Court of Appeals Sixth Circuit.

Stipulation April 12, 1963.

Judgment April 16, 1963.

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Appeal from the Decision United States District Court Western District of Kentucky.

STIPULATION

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The parties to the above-entitled proceeding, by their counsel of record, hereby stipulate as follows:

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1. Whereas the sole issue involved in this appeal is whether legal fees incurred by a taxpayer-husband in the property-settlement aspect of a divorce proceeding are deductible, for income tax purposes, on the theory that they are "ordinary and necessary expenses paid * * * for the management, conservation, or maintenance of property held for the production of income," within the meaning of Section 212(2) of the Internal Revenue Code of 1954;

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2. Whereas essentially the same issue was presented in United States v. Gilmore, 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.2d 570, and United States v. Patrick, 372 U.S. 53, 83 S.Ct. 618, 9 L.Ed.2d 580, decided by the United States Supreme Court in favor of the Government on February 18, 1963;

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3. Whereas this Court on March 27, 1963, granted a motion to stay proceedings in this case until May 17, 1963, in order to give the plaintiff-appellee opportunity to study the opinions of the Supreme Court in United States v. Gilmore and United States v. Patrick, supra;

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Now Therefore, it is hereby stipulated and agreed by and between the parties, by their counsel of record, that, subject to the approval of the Court, the above-entitled appeal may be disposed of without briefing and argument in accordance with the proposed Judgment attached.

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Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., William E. Scent, U. S. Atty., Louisville, Ky., for appellant.

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Joe A. Wallace, Louisville, Ky., for appellee.

JUDGMENT

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On stipulation of the parties to this proceeding, by their counsel of record, it appearing that the issue in this case is the same as that decided by the United States Supreme Court on February 18, 1963, in United States v. Gilmore, 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.2d 570, and United States v. Patrick, 372 U.S. 53, 83 S.Ct. 618, 9 L.Ed.2d 580; and

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It further appearing that the parties to this proceeding desire to avoid further expense in connection with the briefing and argument of the appeal;

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Now Therefore, it is Ordered, Adjudged, and Decreed that the decision of the District Court filed in this cause on December 19, 1961, is hereby reversed, 202 F.Supp. 294, in accordance with the opinions of the United States Supreme Court in United States v. Gilmore and United States v. Patrick, supra, and the District Court is hereby instructed to enter a judgment in favor of the District Director.