238 F2d 40 Cooper v. United States

238 F.2d 40

99 U.S.App.D.C. 179, 56-2 USTC P 9983

Wade H. COOPER, Appellant,


UNITED STATES of America, Appellee.

No. 13186.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 2, 1956.

Decided Oct. 25, 1956.

Petition for Rehearing In Banc Denied Nov. 26, 1956.

Writ of Mandamus Denied Jan. 14, 1957.

See 77 S.Ct. 373.

[99 U.S.App.D.C. 180] Mr. Wade H. Cooper, appellant, pro se.

Mr. Charles B. E. Freeman, Atty., Dept. of Justice, of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of Court, with whom Mr. Charles K. Rice, Asst. Atty. Gen., Mr. Lee A. Jackson, Atty., Dept. of Justice, Mr. Oliver Gasch, U.S. Atty., Mr. Lewis Carroll and Mrs. Kitty Blair Frank, Asst. U.S. Attys., were on the brief, for appellee.

Mr. Harold H. Greene, Asst. U.S. Atty., also entered an appearance for appellee.

Before BAZELON, FAHY and BASTIAN, Circuit Judges.


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The primary question in this suit for refund of federal income taxes for the years 1946 through 1950 relates to appellant's allegation that certain bank stock became worthless in 1945 and that he is therefore entitled to apply the fiveyear loss carry-over provision of Section 117(e) of the Internal Revenue Code of 1939, 26 U.S. § 117(e) (1952 ed.), which became effective December 31, 1941. But in a prior proceeding, commenced by this appellant's Tax Court petition for redetermination of 1946 taxes, the Court of Appeals for the Fourth Circuit held that the bank stock became worthless before December 31, 1941. Cooper v. Com'r, 4 Cir., 1954, 209 F.2d 154. Upon that holding the carry-over provision is inapplicable. The present claims are therefore barred: that for 1946 as res judicata, C.I.R. v. Sunnen, 1948, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898; those for 1947 through 1950 by collateral estoppel. Tait v. Western Maryland R. Co., 1933, 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405.


With respect to other matters urged by appellant we find no error affecting substantial rights. The summary judgment below in favor of appellee is