596 F2d 315 Ingham v Turner

596 F.2d 315

79-1 USTC P 13,291

Helen Ann Hubbell INGHAM, Individually and as representative
of all others similarly situated, Appellant,
v.
Richard TURNER, Attorney General of the State of Iowa, James
W. Hubbell, Jr., Robert J. Fleming, and Riley H. Richards,
Trustees of the Frederick M. Hubbell Estate, Roy D. Clark,
Director, Midwest Service Center of the Internal Revenue
Service, and Michael J. Murphy, Iowa District Director of
the Internal Revenue Service, Appellees.

No. 78-1826.

United States Court of Appeals,
Eighth Circuit.

Submitted March 15, 1979.
Decided April 5, 1979.

Larned A. Waterman (argued) of Lane & Waterman, and Thomas J. Shields and Linda K. Biehl, Davenport, Iowa, on brief, for appellant.

Paul A. Zoss (argued) of Austin, Myers, Peterson & Gaudineer, and J. R. Austin and James R. Austin, Jr., Des Moines, Iowa, on brief, for Trustees.

Robert S. Pomerance (argued) Atty., App. Section, Tax Division, U. S. Dept. of Justice, Washington, D. C. and M. Carr Ferguson, Asst. Atty. Gen., Roxanne Barton Conlin, U. S. Atty. and Kermit Bruce Anderson, Asst. U. S. Atty., Des Moines, Iowa, Gilbert E. Andrews and Richard Farber, Washington, D. C., on brief, for appellees.

Before BRIGHT and STEPHENSON, Circuit Judges, and LARSON, Senior District Judge.*

PER CURIAM.

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1

This action involves the validity of a document executed by plaintiff which purports to be an irrevocable disclaimer of a remainder interest subject, however, to its validity under § 2518 of the Internal Revenue Code, Title 26 of the United States Code. The district court1 granted the motion to dismiss interposed by those defendants who are Internal Revenue Service officers. Ingham v. Hubbell, 462 F.Supp. 59, D.C. (1978). Plaintiff has appealed that dismissal. Upon reviewing the record in this case, the court is persuaded that this suit is one with respect to federal taxes and as such is not cognizable under the Declaratory Judgment Act, 28 U.S.C. § 2201. The judgment of the district court is affirmed on that ground, Id., 62-64, and accordingly it is not necessary to discuss the alternative grounds for dismissal given below.

*

The Honorable Earl R. Larson, United States Senior District Judge for the District of Minnesota, sitting by designation

1

The Honorable William Stuart, Chief Judge, United States District Court, Southern District of Iowa