Opinion
No. 165.
March 7, 1942.
Appeal from the District Court of the United States for the Western District of New York.
Action by Harry Yates against George T. McGowan, as United States Collector of Internal Revenue for the 28th New York District, to recover taxes paid. The complaint was dismissed by the District Court, 39 F. Supp. 257, and the judgment of dismissal was affirmed by the Circuit Court of Appeals, 124 F.2d 819, and plaintiff filed a petition for rehearing.
Petition denied.
O'Brian, Hellings, Ulsh Morey, of Buffalo, N.Y., for appellant.
Samuel O. Clark, Jr., Asst. Atty. Gen., J. Louis Monarch, Helen R. Carloss, and Paul R. Russell, Sp. Assts. to the Atty. Gen., and George L. Grobe, U.S. Atty., and R. Norman Kirchgraber, Asst. U.S. Atty., both of Buffalo, N.Y., for appellee.
Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
Point I of appellant's brief was not misapprehended or left undecided. The transactions from which he derived taxable gain were the 1930 and 1931 redemptions of bonds acquired in 1927. Hence Fairbanks v. United States, 306 U.S. 436, 438, 59 S.Ct. 607, 83 L.Ed. 855, is controlling. That the bonds were acquired in 1927 in exchange for capital assets in a non-taxable transaction does not affect the character of the later transactions from which the taxable gain was derived. See Felin v. Kyle, 3 Cir., 102 F.2d 349.
Petition for rehearing denied.