228 F2d 903 Commissioner of Internal Revenue v. F Mahler

228 F.2d 903



Benjamin and Julia F. MAHLER, Respondents.

No. 9.

Docket 23480.

United States Court of Appeals Second Circuit.

Argued December 14, 1955.

Decided January 3, 1956.

The Commissioner of Internal Revenue appeals from a decision of the Tax Court holding that under Sections 12(d) and 51(b) of the 1939 Code, as amended by the Revenue Act of 1948, 26 U.S.C.A. §§ 12(d), 51(b), a legal fee in the amount of $69,498, received by the husband taxpayer in 1948 for services rendered by him over a period extending from 1942 to 1948, may be allocated one-half to himself and one-half to his wife over the years during which it was earned for the purpose of computing the tax attributable thereto under the provisions of Section 107(e) of the Code, 26 U.S.C.A. § 107(e). The taxpayers filed separate returns for each of the years 1942 to 1947 inclusive, but for the taxable year of 1948 they filed a single joint return. Affirmed.

H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Hilbert P. Zarky and George F. Lynch, Sp. Assts. to Atty. Gen., for petitioner.

Benjamin Mahler, New York City, for respondents.

Robert Ash, Washington, D. C., as amicus curiæ.

Before CLARK, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.


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We agree with and shall follow the decisions made on the precise point at issue here by our brethren of the Third, Fourth and Ninth Circuits. Commissioner of Internal Revenue v. Stockly, 3 Cir., 221 F.2d 745, affirming Stockly v. Commissioner, 22 T.C. 28; Hofferbert v. Marshall, 4 Cir., 200 F.2d 648, affirming Marshall v. Hofferbert, D.C.Md., 108 F. Supp. 350; Ford v. Commissioner, 9 Cir., 217 F.2d 886, adopting the reasoning expressed in the opinion of Judge (now Chief Judge) Murdock in the Stockly case, supra, after review by the entire Tax Court.