393 F2d 136 Ginsberg v. W Tomlinson

393 F.2d 136

68-1 USTC P 9283

Sydney GINSBERG and Anna Ginsberg, Deceased, Sydney
Ginsberg, Executor, Appellants,
Laurie W. TOMLINSON, District Director, Internal Revenue for
the District of Florida, Appellee.

No. 24924.

United States Court of Appeals Fifth Circuit.

March 19, 1968.

Sidney A. Soltz, Miami, Fla., for appellants.

Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Joseph M. Howard, John M. Brant, Burton Berkley, Attys., Dept. of Justice, Washington, D.C., William A. Meadows, Jr., U.S. Atty., Robert L. Steuer, Asst. U.S. Atty., Miami, Fla., John P. Burke, Attorney, Department of Justice, Washington, D.C., for appellee.

Before TUTTLE and GOLDBERG, Circuit Judges, and HOOPER, District judge.


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It appearing that the prior decision of the Tax Court is res adjudicata as to the calendar year 1947, and that the findings of the Tax Court that the sum of $16,865.00 was fraudulently paid over to taxpayer and his brother equally, relates entirely to amounts of unreported income for the years January through November, 1948, there was no substantial issue of fact to withstand motion for summary judgment.


As to Mrs. Ginsberg's claim, there was no effort by her to show that the fraud penalty was paid by any of her funds. See Tomlinson v. Lefkovitz, 5 Cir., 334 F.2d 262.

The judgment is