Helvering, Commissioner of Internal Revenue, v. R. Douglas Stuart; and Helvering, Commissioner of Internal Revenue, v. John Stuart

No. 49. Helvering, Commissioner of Internal Revenue, v. R. Douglas Stuart; and Helvering, Commissioner of Internal Revenue, v. John Stuart. No. 48. December 14, 1942. [MAJORITY] It is ordered that the last paragraph on page 3 of the opinion of November 16,1942, be struck out. It reads as follows: “In answer to the taxpayers’ petitions for the redetermination of the deficiencies, the Commissioner asserted the increase was required by the provisions of Sections 22, 166, and 167 of the Revenue Act of 1934, 48 Stat. 680. So far as pertinent these are set out in the footnote below.” In lieu thereof insert the following: “In answer to the taxpayer’s petition in No. 49 for the redetermination of the deficiencies, the Commissioner asserted the increase was required by the provisions of Sections 22, 166, and 167 of the Revenue Act of 1934, 48 Stat. 680. Section 22 was not raised by the Commissioner in his answer to the petition in No. 48. But the applicability of that section was raised by the Commissioner as appellee before the Circuit Court of Appeals (Helvering v. Gowran, 302 U. S. 238, 245). The contention in the Court of Appeals rested on the facts stipulated in the Board of Tax Appeals. On the rejection of that ground in the court below the Commissioner was entitled to raise the question, as he did, in his petition for certiorari and rely on Section 22 in this Court. Helvering v. Gowran, ibid., 246; cf. Hormel v. Helvering, 312 U. S. 552. So far as pertinent the sections are set out in the footnote below.*” It is further ordered that the first sentence of the last paragraph on page 8 be struck out. It reads as follows: "The Commissioner, however, has pressed continually since this litigation started for taxation under 22 (a), see footnote page 3, on the ground that the trust incomes are chargeable to the donors under the rule of Helvering v. Clifford, 309 U. S. 331.” In lieu thereof insert the following: “The Commissioner, however, raised in the Court of Appeals and has pressed here the liability of the donors for taxation under 22 (a), see footnote page 3, on the ground that the trust incomes are chargeable to the donors under the rule of Helvering v. Clifford, 309 U. S. 331.” The petitions for rehearing are denied. Opinion reported as amended, ante, p. 154.