ESTATE OF WILLETT v. C. I. R.

No. 21971.

365 F.2d 760 (1966)

ESTATE of J. O. WILLETT, Deceased, R. S. Turner and Zoe C. Willett, Co-Executors, and Zoe C. Willett, Surviving wife, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

United States Court of Appeals Fifth Circuit.

July 29, 1966.


Attorney(s) appearing for the Case

C. McVea Oliver, Monroe, La., for petitioner.

Louis F. Oberdorfer, Asst. Atty. Gen., Tax Div., John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson, Herbert Grossman, Harry Baum, Attys., Dept. of Justice, Sheldon S. Cohen, Chief Counsel, Max G. Ansbacher, Atty., I.R.S., Washington, D. C., for respondent.

Before WISDOM and COLEMAN, Circuit Judges, and DAWKINS, Jr., District Judge.


WISDOM, Circuit Judge:

The narrow question for decision is whether the incorporation of a proprietorship that has previously made an election to be taxed as a corporation, under Section 1361 of the Internal Revenue Code,1 is a taxable event, under Treasury Regulation Section 1.1361-5(b). We hold that it is not a taxable event. The regulation must yield to Congressional intent to protect unwary small businessmen from just such a...

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