217 F2d 278 Moskin v. W Johnson

217 F.2d 278

Morris MOSKIN, Plaintiff-Appellant,


James W. JOHNSON, Collector of Internal Revenue, Defendant-Appellee.

No. 38.

Docket 23119.

United States Court of Appeals, Second Circuit.

Argued November 9, 1954.

Decided November 26, 1954.

J. Gilmer Korner, Jr., Washington, D. C. (Hays, St. John, Abramson & Schulman, Arthur Garfield Hays, Morris Shilensky, and Benjamin F. Gray, New York City, on the brief), for plaintiff-appellant.

Thomas C. Burke, Asst. U. S. Atty., New York City (J. Edward Lumbard, U. S. Atty., New York City, on the brief), for defendant-appellee.

Before CLARK, Chief Judge, and FRANK and HARLAN, Circuit Judges.


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Plaintiff appeals from a judgment dismissing his claim for tax refunds on grounds of failure to prove good faith in the creation of interfamilial trusts. On this issue plaintiff had the burden of proof. Niles-Bement-Pond Co. v. United States, 281 U.S. 357, 50 S.Ct. 251, 74 L.Ed. 901. Judge Bondy in an extensive opinion, D.C.S.D.N.Y., 115 F. Supp. 565, found that, despite compliance with the formalities of state law in the execution of these trusts, plaintiff had shown no effective diminution in his control over their corpus or income. Thus he held that the income diverted to these trusts was taxable to plaintiff as settlor thereof under I.R.C. § 22(a), 26 U.S.C., citing Helvering v. Elias, 2 Cir., 122 F.2d 171, certiorari denied Elias v. C.I.R., 314 U.S. 692, 62 S.Ct. 361, 86 L.Ed. 553; Jones v. Norris, 10 Cir., 122 F.2d 6; Edison v. C. I. R., 8 Cir., 148 F.2d 810, certiorari denied 326 U.S. 721, 66 S.Ct. 25, 90 L.Ed. 427. We concur in these findings of the trial judge. On this basis we do not need to consider the applicability of Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, as relied on by the Collector.