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OVERLY v. COMMISSIONER OF INTERNAL REVENUE

No. 12132.

243 F.2d 576 (1957)

Elmer G. OVERLY and Mary H. Overly, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

United States Court of Appeals Third Circuit.

Decided April 29, 1957.

Attorney(s) appearing for the Case

William W. Scott, Jr., Pittsburgh, Pa. (Thorp, Reed & Armstrong, Pittsburgh, Pa., on the brief), for petitioners.

Melvin L. Lebow, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Robert N. Anderson, Atty., Dept. of Justice, Washington, D. C., on the brief), for respondent.

Before MARIS, KALODNER and STALEY, Circuit Judges.

PER CURIAM.

The decisive question in this case is whether the income received by one of the taxpayers by way of salary for his personal services was income from a "trade or business regularly carried on by the taxpayer" within the meaning of section 122(d) (5) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 122(d) (5), relating to the net operating loss deduction. The Tax Court held that it was such income and upheld the Commissioner's computation of the...

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