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BERNER v. UNITED STATES

Nos. 298-54, 297-54.

282 F.2d 720 (1960)

T. Roland BERNER, George W. Taylor and Theodore Friedlander, Jr., As Trustees Under the Last Will and Testament of Herman Gardner, Deceased v. UNITED STATES. Theodore FRIEDLANDER, Jr., As Executor of the Last Will and Testament of Gertrude Gardner, Deceased v. UNITED STATES.

United States Court of Claims.

October 5, 1960.

Attorney(s) appearing for the Case

Julian S. Bush, New York City, for plaintiffs. T. Roland Berner, James M. Snee and Aaron Lewittes, New York City, were on the briefs.

Benjamin H. Pester, Washington, D. C., with whom was Charles K. Rice, Asst. Atty. Gen., for defendant. James P. Garland and Lyle M. Turner, Washington, D. C., were on the brief.

JONES, Chief Judge.

These are consolidated actions for refund of Federal income taxes. The primary issue common to both cases involves the corporate reorganization provisions of the Internal Revenue Code of 1939, and their application to a recapitalization of the Phoenix Hosiery Company in the year 1944. As will be hereinafter more fully set out, by the end of 1943 the Phoenix Company was in financial difficulties, being greatly in arrears on the payment of preferred...

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