298 F2d 527 Wesemann v. Commissioner of Internal Revenue

298 F.2d 527

Hans P. WESEMANN, Petitioner,

No. 121.

Docket 27112.

United States Court of Appeals Second Circuit.

Argued January 17, 1962.

Decided February 2, 1962.

Louis Ogust, New York City, for petitioner.

Robert L. Waters, Department of Justice, Washington, D. C. (John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson and Robert N. Anderson, Department of Justice, Washington, D. C., on the brief), for respondent.

Before MEDINA, SMITH and HAYS, Circuit Judges.


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We affirm on the well reasoned opinion of Judge Train, reported at 35 T.C. 1164. While it is true that we are interpreting the definition of a "head of a household" as provided in Section 1(b) of the Internal Revenue Code of 1954, 26 U.S. C.A. § 1(b) as a matter of federal law, we can only do this with relation to the state law applicable to matrimonial actions, here the law of the State of New York. See Commissioner of Internal Revenue v. Rankin, 3 Cir., 1959, 270 F. 2d 160. In the action brought in New York in 1934 against the taxpayer by his wife for a legal separation he asserted no counterclaim, and the dismissal of the wife's action on the merits sustained the taxpayer's defense that he was justified in leaving his wife. He might be regarded as "legally separated from his spouse" but under no circumstances do the New York authorities permit the inference that he is "legally separated from his spouse under a decree of divorce or of separate maintenance."