Opinion
No. 404.
May 23, 1932.
Appeal from the District Court of the United States for the Southern District of New York.
In the matter of the Experimenter Publishing Company, Incorporated, bankrupt, for which the Irving Trust Company was trustee. From an order expunging a notice of an unliquidated claim for additional franchise taxes due the State of New York from the bankrupt for the tax years of November 1, 1917 to 1928, inclusive, the State appeals.
Affirmed.
S. John Block and Root, Clark Buckner, all of New York City (Robert Halpern, of New York City, on the brief), for Irving Trust Co., trustee.
John J. Bennett, Jr., Atty. Gen. (Robert P. Beyer, Deputy Asst. Atty. Gen., of counsel), for appellee.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
The referee's order expunging the claim filed by the people of the state of New York against the collector of internal revenue, was affirmed by the District Court. The order entered expunged the record of an unliquidated claim for additional franchise taxes due to the state of New York from the bankrupt for the tax years beginning November 1, 1917 to 1928, inclusive. The reason therefor was that the appellant did not file its claim within the time allowed by the tax bar order. We have heretofore held that orders such as that appealed from had binding effect upon sovereigns and must be complied with. Matter of Morgenstern Co., Bankrupt, 57 F.2d 163 decided April 4, 1932 (C.C.A.2d Cir.); In re Anderson, 279 F. 525 (C.C.A. 2). Upon the authority of these cases, the order appealed from is affirmed, but without prejudice to an application by the people of the state of New York presenting an actual claim which can be audited and showing lawful reasons why it should be paid, at which time the trustee may contest the right to payment.
Order affirmed.