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MORRIS PLAN IND. BANK v. COMMISSIONER OF INT. REV.

No. 14.

151 F.2d 976 (1945)

MORRIS PLAN INDUSTRIAL BANK OF NEW YORK v. COMMISSIONER OF INTERNAL REVENUE.

Circuit Court of Appeals, Second Circuit.

November 5, 1945.

Attorney(s) appearing for the Case

Donald Horne, of New York City (Henry W. Parker, of New York City, of counsel), for petitioner.

Samuel O. Clark, Jr., Sewall Key, Robert N. Anderson, and Harry Baum, all of Washington, D. C., for respondent.

Before L. HAND, CHASE and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. We cannot agree that the pending suit in the district court deprived the Commissioner of his statutory authority to issue a deficiency notice or rendered that notice legally inefficacious. The suit was not what is commonly called "in rem" or "quasi in rem," and therefore could not operate to prevent him from exercising his statutory powers. Perhaps had there been a judgment in the district court, it would have been res judicata; but there...

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