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FIFTH AVE-FOURTEENTH ST. CORP. v. COMMISSIONER OF I. R.

No. 42.

147 F.2d 453 (1944)

FIFTH AVENUE-FOURTEENTH STREET CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.

Circuit Court of Appeals, Second Circuit.

As Modified on Denial of Rehearing January 4, 1945.

Attorney(s) appearing for the Case

Harry Friedman, of Washington, D.C., for petitioner.

Samuel O. Clark, Jr., of Washington, D. C. (Sewall Key, A. F. Prescott, and Harold C. Wilkenfeld, all of Washington, D. C., of counsel), for respondent.

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

FRANK, Circuit Judge.

1. Assuming for the moment that we must accept the facts as found by the Tax Court, affirmance is required by United States v. Kirby Lumber Co., 284 U.S. 1, 52 S.Ct. 4, 75 L.Ed. 131. For, on those facts, here, as there, the taxpayer "as a result of its dealings made available * * * assets previously offset by the obligation of bonds now extinct." The transaction gave rise to income which was then "realized," and...

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