191 F. Supp. 792 | S.D.N.Y. | 1961
This is an application pursuant to Fed.R.Civ.P. 60(b), 28 U.S.C.A. for relief from the order of this court, dated December 29, 1960, granting the Government’s motion for summary judgment and denying the plaintiffs’ cross-motion for summary judgment.
The decision on the motions for summary judgment upholds the Commissioner’s determination concerning the application of the standard described in U.S. Treas. Reg. 105, § 81.46 (1942) to the facts presented here. It was my conclusion, based upon an examination of the existing precedent that, in addition to statistical data applicable to the generality of cases, it was reasonable to require plaintiffs to come forward with some evidence bearing on this particular case tending to show either the life tenant’s poor health or her incapacity to bear issue due to surgery or natural causes.
Plaintiffs now point out that, according to the most recent Department of Commerce statistics, i. e., those available to the Commissioner at the time of his 1959 ruling favorable to the taxpayer where one of the life tenants was a 55 year old female, first births to women of 55 years and over have occurred. However, the new affidavit and exhibits prepared by a professional actuary and sub
Neither this court nor the Court of Appeals in the City Bank Farmers’ Trust Co. case attempted to specify the earliest age at which statistical data alone should suffice to demonstrate the remote possibility of the birth of issue to a female life tenant. Nor, contrary to plaintiffs’ present assertion,
In view of the judicial expressions discussed in my opinion of December 29, 1960 recognizing the distinction between probabilities applicable to the generality of cases and evidentiary requirements in particular instances, I cannot agree that the Commissioner has unreasonably interpreted and applied Treas. Reg. 105, § 81.46 (1942) in the situation presented here or that his ruling with respect to a 55 year old woman obligates him to disregard in the case of a 47 year old woman the factor of individual volition.
Accordingly, plaintiffs’ motion is denied in all respects.
So ordered.
. Since plaintiffs have filed a notice of appeal, it is clear that, in the absence of a remand by the appellate court, this court lacks power to grant the requested relief. Under these circumstances, the appropriate procedure is not free from doubt. See 7 Moore, Federal Practice, ¶ 60.30 [2] (2d ed. 1955, Supp.1960). Following the suggestion of the Court of Appeals for the District of Columbia in Smith v. Pollin, 1952, 90 U.S.App.D.C. 178, 194 F.2d 349, I have considered the issues presented and have determined that, were the matter properly before me, I would deny the motion on the merits. See Freedman v. Overseas Scientific Corp., D.C.S.D.N.Y.1957, 150 F.Supp. 394, 397. Cf. Fed.R.Crim.P. 33, 18 U.S.C.A., United States v. Minkoff, 2 Cir., 1950, 181 F.2d 538.
. I find no basis for plaintiffs’ assertion, in their second ground for this motion, tbat my conclusion was of a different character. At page 676 of the opinion in 190 F.Supp. I stated:
“Where, as here, there has been no evidence of poor health or incapacity due to surgery or natural causes, the existing precedent indicates that, in the case of a 47 year old woman, statistical data is insufficient to meet the requirement of section 81.46(a).”
My further statement that “I do not reject the statistics offered by plaintiffs as without evidentiary value” was not intended to suggest that the particular statistics presented were incomplete or that the method of computation was improper. My point was simply this: Had plaintiffs introduced evidence tending to show the physical incapacity of the life tenant, Mrs. Hughes, I would have considered the statistical data as affecting the strength of such proof.
. See affidavit of Paul H. Jacobson, Feb. 19, 1961, p. 4: “[A]t age 49 and at age 50 and over the number of births drops off shaply.” Exhibit B to Mr. Jacobson’s affidavit includes the following statistical data:
“Exhibit B
Registered First Live Births, White Females
United States Mother’s 1948 * 1947 Age (p. 165) (p. 105) 1946 (p. 184 47 29 32 IS 48 14 7 9 49 7 10 8 50 0 1 4 51 1 3 0 52 0 3 1 53 0 2 0 54 1 55 2 56 • 10 14 2 57 1 58 1 59+ 0
* Last year, with published age detail beyond 50.
Source: Vol. II. National Office of Vital Statistics, Vital Statistics of the United States,
Paul H. Jacobson
2-8-61”
. Plaintiffs assert, as a first ground for this motion, that my opinion was predicated upon a distinction between ages at which the statistics showed no births and ages at which the statistics showed few births.