358 F2d 672 United States v. Wyoming Builders Inc

358 F.2d 672

66-1 USTC P 9359

UNITED STATES of America, Appellant,

No. 7861.

United States Court of Appeals Tenth Circuit.

April 5, 1966.

William A. Friedlander, Washington, D.C. (John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson and Harry Baum, Washington, D.C., and Robert N. Chaffin, U.S. Atty., of counsel, on the brief), for appellant.

Byron Hirst, Cheyenne, Wyo. (James L. Applegate and Richard v. Thomas, of Hirst, Applegate & Thomas, Cheyenne, Wyo., on the brief), for appellee.

Before PHILLIPS, LEWIS and HILL, Circuit Judges.


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This is an action by Wyoming Builders, Inc., filed in the District Court for the District of Wyoming pursuant to 28 U.S.C. 1346(a)(1), to recover federal income taxes paid for the taxpayer's fiscal year ending October 31, 1958. The issue is whether such taxes were compelled and paid through an assessment erroneously disallowing a depreciation deduction claimed by taxpayer for the tax year in which an asset was sold for a price greater than its adjusted cost basis at the beginning of such year. Judgment below was for the taxpayer. 227 F.Supp. 534.


The government concedes that the issue presented upon appeal is the same as that considered by the Supreme Court in Fribourg Navigation Company, Inc. v. Commissioner of Internal Revenue, 86 S.Ct. 862, decided March 7, 1966, and wherein that Court rejected the Commissioner's contentions as here presented by appellant.


The judgment is accordingly affirmed upon authority of Fribourg.