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LUBIN v. C. I. R.

Nos. 445, 446, Dockets 28804, 28805.

335 F.2d 209 (1964)

Joseph I. LUBIN and Evelyn J. Lubin, and Estate of Joseph Eisner, Deceased, Helen Eisner, Executrix, and Helen Eisner, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

United States Court of Appeals Second Circuit.

Decided July 27, 1964.

Attorney(s) appearing for the Case

Harry J. Rudick, Mason G. Kassel, John A. Gray, New York City (Lord, Day & Lord, New York City, of counsel), for petitioners.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Michael K. Cavanaugh, Attys., Dept. of Justice, for respondent.

Before WATERMAN and FRIENDLY, Circuit Judges, and ANDERSON, District Judge.

WATERMAN, Circuit Judge:

We are called upon in this case to determine whether a sum of $1,000,000 realized by four taxpayers upon the retirement of twelve registered mortgage notes, a sum representing the difference between the $3,000,000 face value of the notes and the $2,000,000 which the taxpayers actually paid for them upon issuance, is to be treated for income tax purposes as ordinary income or as a capital gain. The Tax Court, T.C. Memo. 1963-292, concluded...

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