382 F2d 295 Commissioner of Internal Revenue v. Estate J Bosch

382 F.2d 295

ESTATE of Herman J. BOSCH, Deceased, Irving Trust Company, Executor, Respondent.

No. 531.

Docket 29883.

United States Court of Appeals Second Circuit.

Submitted September 11, 1967.

Decided September 21, 1967.

Petition for review of a decision of the Tax Court, Raum, Judge (43 T.C. 120 (1964)), holding that the judgment of the Supreme Court of New York in a collateral case brought by respondent, that a purported release of a power of appointment under an inter vivos trust was ineffective, was "an authoritative exposition of New York law" binding upon the federal courts in federal estate tax litigation, affirmed 363 F.2d 1009 (2 Cir. 1966), reversed and remanded 387 U.S. 456, 87 S. Ct. 1776, 18 L.Ed.2d 886 (1967). Taken on submission after remand.

Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson, Benjamin M. Parker, and Thomas Silk, Department of Justice, Washington, D. C., for petitioner.

Davies, Hardy & Schenck, New York City (John A. Clark and John W. Burke, New York City, on the brief), for respondent.

Before FRIENDLY, HAYS and FEINBERG, Circuit Judges.


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Upon consideration of the briefs and argument when the Commissioner's petition to review was first before us and the supplemental briefs filed by the parties upon remand from the Supreme Court of the United States, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886, we conclude that the New York Court of Appeals would not follow the decision of the Supreme Court, New York County, in Matter of Irving Trust Co. (Bosch), but would uphold the partial release of the general power of appointment. Accordingly the judgment of the Tax Court is reversed.