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HELVERING v. SMITH

No. 329.

90 F.2d 590 (1937)

HELVERING, Commissioner of Internal Revenue, v. SMITH.

Circuit Court of Appeals, Second Circuit.

June 7, 1937.

Attorney(s) appearing for the Case

James W. Morris, Asst. Atty. Gen., and Sewall Key and Charles A. Horsky, Sp. Assts. to the Atty. Gen., for appellant.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (James R. Roberts and H. Maurice Fridlund, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The Commissioner appeals from a ruling by the Board of Tax Appeals, allowing the taxpayer to compute his tax under section 101 (a) of the Revenue Act of 1928, 26 U.S.C.A. § 101 note; that is to say, holding that the transaction involved resulted in a "capital net gain," section 101 (c) (5), 26 U.S.C.A. § 101 note, derived from the sale of "capital assets," section 101 (c) (8), 26 U.S.C.A. § 101 note. This issue arose from the...

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