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UNITED STATES v. LINCOLN ROCHESTER TRUST COMPANY

No. 23, Docket 26879.

297 F.2d 891 (1962)

UNITED STATES of America, Appellant, v. LINCOLN ROCHESTER TRUST COMPANY, as Administrator, c. t. a., of the Last Will & Testament of Albert E. Copeland, deceased, Appellee.

United States Court of Appeals Second Circuit.

Decided January 10, 1962.

Attorney(s) appearing for the Case

Harold M. Seidel, Atty., Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Robert N. Anderson, Attys., Dept. of Justice, Washington, D. C., Neil R. Farmelo, U. S. Atty., Buffalo, N. Y., and Anthony R. Palermo, Asst. U. S. Atty., Western Dist. of New York, Rochester, N. Y., on the brief), for appellant.

Scott Stewart, Jr., Rochester, N. Y. (Sterling L. Weaver and Nixon, Hargrave, Devans & Dey, Rochester, N. Y., on the brief), for appellee.

Before MOORE, SMITH and HAYS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

This is an appeal by the Commissioner from a judgment of the District Court awarding taxpayer a refund for taxes paid on a deficiency assessment of $14,055.22 plus interest. The case was submitted on an agreed stipulation of facts which are fully set forth in the opinion below, reported at 188 F.Supp. 839 (W.D. N.Y.1960).

The widow of deceased was given a life estate and the power to "use...

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