COMMISSIONER OF INTERNAL REVENUE v. ROSENBLOOM FINANCE CORPORATION

COMMISSIONER OF INTERNAL REVENUE v. ROSENBLOOM FINANCE CORPORATION. No. 5094. Circuit Court of Appeals, Third Circuit. Aug. 17, 1933. Helen R. Carloss, Sewall Key and J. Louis Monarch, all of Washington, D. C. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and John D. Foley, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for petitioner. Wm. W. Spalding, of Washington, D. C. (Mason, Spalding & McAtee, of Washington, D. C., of counsel), for respondent. Before BUFFINGTON, DAYIS, and THOMPSON, Circuit Judges. [MAJORITY — BUFFINGTON, Circuit Judge.] BUFFINGTON, Circuit Judge. The underlying question in this tax case is whether whisky warehouse certificates owned by the Rosenbloom Finance Corporation, the taxpayer, were acquired by gift from its majority shareholder, Sol Rosenbloom. If acquired by gift, their value for ascertaining profit was their cost to the donor, $51,538.26. If not so acquired, their cost to the taxpayer was $269,494.97. The Board of Tax Appeals held the transaction was not a gift, and the Commissioner took this appeal. There is no dispute as to facts, and the question is wholly one of law. The facts, a full discussion thereof, and citations of authorities bearing on the case are set forth at full length in the findings and opinion of the Tax Board, and by reference thereto we avoid useless restatement. The taxpayer paid Rosenbloom no money, stock, or other consideration therefor. It was a voluntary transfer of property without consideration or compensation therefor, and the form it took involved no ownership by any third party, and, whatever form or semblance it took, in substance and reality it was a transfer with the aim of avoiding tax. In our judgment it was a gift. The decree of the Tax Board will therefore be set aside and the record remanded for due procedure in accord herewith.