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MARCO S. MARINELLO ASSOC., INC. v. C.I.R.

No. 75-1487.

535 F.2d 147 (1976)

MARCO S. MARINELLO ASSOCIATES, INC., Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee.

United States Court of Appeals, First Circuit.

Decided May 14, 1976.

Attorney(s) appearing for the Case

Cornelius J. Moriarty, Jr., Holyoke, Mass., with whom Paul T. Smith, Boston, Mass., and Ely, King, Corcoran, Milstein & Moriarty, Holyoke, Mass., were on brief, for appellant.

J. Ross MacBeth, Atty., Tax Div., Dept. of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, and Meyer Rothwacks, Attys., Tax Div., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

The case is affirmed on the basis of Judge Tannenwald's opinion in the Tax Court. Appellant's efforts to avoid the application of the "claim of right" doctrine are unpersuasive. He clearly realized gain upon receipt of the $281,000, and it is admitted that he did not reinvest the contested amount in replacement property within such time as to qualify for nonrecognition under 26 U.S.C. § 1033(a)(3). Furthermore, we are not able to say that the Commissioner...

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