250 F2d 798 Levine v. Commissioner of Internal Revenue

250 F.2d 798

Lazarus I. LEVINE and Norman L. Marks, Executors of the Estate of Samuel Stein, Petitioners-Appellants,

No. 44.

Docket 24516.

United States Court of Appeals Second Circuit.

Argued December 4, 1957.

Decided January 6, 1958.

Murray L. Brinn, New York City, for petitioners-appellants.

Grant W. Wiprud, Atty., Dept. of Justice, Washington, D.C. (Charles K. Rice, Asst. Atty. Gen., and John N. Stull and A. F. Prescott, Attys., Dept. of Justice, Washington, D.C., on the brief), for respondent-appellee.

Before CLARK, Chief Judge, MOORE, Circuit Judge, and SMITH, District Judge.


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The income tax deficiencies for 1944 and 1945 here assessed against the estate of the deceased taxpayer, Samuel Stein, were based upon findings that certain proceeds of sales of goods in Stein's bank accounts really represented sales by Stein's wholly owned corporation and thus were taxable first as income to the corporation and then as dividends to Stein. These findings are not here challenged, but petitioners by a motion to revise the opinion and decision of the Tax Court raised the issue that Stein had actually paid for the original purchase of goods thus sold and petitioners could therefore take the purchase price as a deduction in computing the tax. But the Tax Court in denying the motion found the evidence that such payments came from Stein, rather than his corporation, insufficient to sustain petitioners' burden and held that the purchase price was to be attributed to the corporation. This is the sole issue on appeal. We do not find the court's holding clearly erroneous and affirm on Judge Black's original opinion, Estate of Stein v. C. I. R., 25 T.C. 940, and on his memorandum opinion accompanying the order denying the motion to revise.