*1 n Storgard upon and Can- this we v. France We do not think that record Our decision in held that should maintenance and Corp., 263 F. fix the amount of ada S. S. his not factor cure. The likelihood of the ease was heard while that cause injury unseaworthy, and gear libel, parties suit not which was in the and the between suppose litigating no distinction that were it. We there would seem be though complement. But other, to one we that and a deficient be unfair or far, ap- as will piece together finding went so tried to certainly based below, charge pear excerpt scraps in the from evidence here and there hearing wholly go we meant clear whether record. The case will injuries for all an was liable suit owner cause of maintenance or whether arising unseaworthiness, cure. on invoking the doctrine announced except reversed; Decree libel dismissed Parry (C. C. day in S. Co. v. same Cricket maintenance; for trial as to cause remanded does a seaman 523; F. A.) 263 upon this that cause No costs of suit. he gear which risk defective assume the appeal. now reserve ordered to sea. use at open for a ease being point, content MANTON, presented, thoroughly more in which can be unseaworthy assuming being Assuming tug own- time though could possibly hand, nobody er is liable even the deck cause of absence of cause the anticipate the defect would injury to proximate was not the jury- negligence was his own injury. I think the his the libellant do because This we can application has no assumption rule risk tug’s short-handedness. sumed risk concur here, to the circumstances but I general seaman that a It is indeed true result. unsea does not assume risk sea worthiness, though it known to him Parry, su Cricket S. S. Co. embarks. he pra R. R. 263 F. Panama A.)C. (C. Zin 2);A. Johnson, (C. Corp., B. E. F. S. S. nel v. U. does excuse (C. not however A.C. alternative, him when he [Holm Transp. Co., Service Cities EATON, HARWOOD v. Collector of Internal who, 2) excuse those ]; nor does it C. A. Revenue. seamen, strictly speaking No. 51. craft, on which employed harbor leaving night Appeals, only during day, each Circuit Court Second serve Circuit. every renewing their work home, Dec. men morning, like shore workmen. Such longshoremen other position are in Lehigh on water workers casual [Skolar Valley Co., F.(2d) 893 R. R. 60 403], who as (D. C.) The Scandinavia risks, quite obvious sume all Maharajah, 49 injured shore. The Saratoga, 2); The C. A. F. 111 Smith, S. S. Co. Cunard v. N. Harbor (C. A. Hardie Y. Corp., Dock Dry Inc., Brady Gioe, 246 N. Y. 2); Yaconi v. libellant knew when N. E. morning tug left that would the absent compelled to handle lines for
'
deckhand,
far as
done before. So
as he had
danger
greater
than
exposed him
acquiesced in the
place aft, he
usual
in his
all
elements
an as
This fulfills
risk.
recovery.
prevents
risk and
sumption of
*2
thereon from
sum.
with interest
of payment.
date
presents
appeal
This
Union
similar to that considered Western
Company
Telegraph
v. Commissioner
16,
is
A.)
opinion
It
controlled
handed down herewith.
there,
assume
Here, as
principles.
similar
subject
corporation was
to
the lessor
respect
the rental
to
income tax in
in 1926. Such
made direct
its stockholders
may collect from
taxes the
States
United
Hartford,
Buckley,
Atty.,
John
U. S.
reached;
any can be
corporation’s property, if
Cohen,
Atty.,
(George
Asst.
Conn.
H.
collect them
but it
Pretty
Barrett
Hartford, Conn., and E.
gen
merely as such.
In
tion’s stockholders
Counsel,
Internal Rev
man,
Bureau of
Gen.
eral,
is that the
the rule
Blackham, Sp. Atty., Bureau
E.
enue, and S.
for tax
entity
D.
Revenue,
Washington,
of Internal
both
404,
Bowers,
purposes. Dalton
appellant.
C.,
counsel),
205,
389.
410,
Hence
Haven,
Henry
Parmelee,
Conn.
of New
compelled
pay
a tax
stockholder can
Conn.,
Haven,
(John H.
of New
Weir,
only might
against his
sessed
counsel),
way
in
person who had
HAND, SWAN, and
Before L.
AUGUS-
therefore,
pass,
liability therefor. We
curred
Judges.
N.
TUS
Circuit
question of
to a consideration
liability as
“transferee”
SWAN,
Judge.
(26
ofAct
of the Revenue
section
Bay
In
note).
States Tele-
USCA §
graph Cbmpany leased its properties to the
Holding Co., 50 F.
Morosco
In
Hatch
Telegraph Company
Western Union
for a
expressed the view
(2d) 138, we
years
term of
and at a
$12,000
rental of
obligation upon
trans
imposes
newno
per annum payable quarterly. The lease
permits
of a
feree of
provided that, if the lessor should retire its
summary procedure,
him, by a
collection
capital
bonds and redueo its
to $300,-
stock
makes
municipal law
extent
000, the
lessee would indorse
each of the
trans
equity for the
or in
law
him liable at
certificates of
stock
lessor a covenant
necessary
think
is the
taxes. We
feror’s
pay the
annual rental
to said stock-
implication from
pro
holders
rata. The conditions were per-
Commissioner, 283 U. S.
Phillips v.
Court in
formed
and the indorsement
608,
51 S. Ct.
page
year
during
the lessee
.1890,
pro
the statute is referred to as
where
and ever since
the lessee has
the rent di-
enforcing
exist
viding
“a new
rectly to the lessor’s
During
stockholders.
”
equity,’ despite
ing liability
law in
year
plaintiff
192G the
owned 200
shares
S.,
602 of 283 U.
51 S. Ct.
statement,
page
the lessor’s stock
which he received from
is no occasion to decide
that there
608, 610,
the lessee
sum $800.
This sum he in-
the United
States
cluded in
year
his income tax return for the
assets is limited
follow
and he
the tax assessed thereon.
therefore, to
adhere,
the view
state
laws.
Subsequently the Commissioner of Internal
appellant
already expressed. Indeed,
qn
Revenue
$1,350
income tax
challenged
it.
theory
that rental
municipal
law we can find
its stockholders
Under
constituted
it, and,
liability upon
imposing
plain
come to
exhausting
after
basis for
efforts to
collect the tax
States as a cred
from assessed
tiff to account
plaintiff
Empire Company
pay
as a transferee the
full
itor
amount
$800
him in
him from
Union
pins
received
ments received
interest
argued that,
during
$186.10.
thereon
the sum
amount,
$986.10,
re
$800
defendant on
February
corporation.
Conse
1931. A claim refund
ceived
hav-
attempts
predicate
quently
appellant
been filed without result,
then
judgment
theory,
He
suit.
recovered
so-called trust fund
sequent creditor of
reach
the lessor can
such
relying upon such
as United States
eases
rights.
agree
Y.),
(D.
D. N.
We therefore
with the District
Fairall, 16
A.)
50 Court
Holding
that no “transferee”
was estab-
Hatch Morosco
Co.
Accordingly
judgment
lished.
affirmed.
75 L. Ed.
U. S.
*3
L.
argument, for in each
They
support Ms
do not
corporation
cases assets
the.
those
taxing purposes
must
for
If we
insist that
the
a time when
distributed to a
at
stockholder
corporation
juristic person
a
a
already ex
corporation’s
taxes
for
difficulty
find
shareholders,
I should
accompanying
out
pointed
As
isted.
the
a taxable income
in
lessor had
Case,
the New
the Western Union
Earl,
in
I
Lucas v.
Moreover,
agree that
here.
the
payments
made
York law views
by the
present
payments
circumstances as
136, 52 Ct.
Leininger, 285
U.
Burnet
a
the
obligee
contract for
benefit
under a
Routzahn,
Parker v.
345, 76 L. Ed.
and
Certainly
could
corporation
person.
the
6),
not cover the
(2d)
A.
56 F.
the
for
require
to account
the
per
future
assignor’s
these
point, for in
the
theory does a cred
Upon
sum received.
what
promisor’s
upon the
was a condition
formance
higher
corporation
stand
itor of
payment
the “income.”
was
obligation, whose
ground?
payment
not a dividend
The
only
can see between
difference
That
mon
stockholder; no
by
lessor to its
App.
Burnet, 60
D. C.
and
such eases
Hall v.
ey
Company was distributed
of the
86, for in
443, A. L. R.
F.(2d)
332, 54
paid over,
Until
obligations were absolute
which the
stance, in
Union, and, upon
belonged
money
to Western
though payable in
assignment,
at the time
money,
it became
are as
such contracts
the future. When
right of
thereby extinguishing
personal
Ms
assignor
liable for
tax.
is not
signed,
It is true that
Western Union.
Looney,
U. S. v.
for
of action
the consideration
Ferguson,
Nelson
by the
furnished
Union was
assignor’s continued
Indeed, where the
years be
But
demise.
that was
condition,
performance is a
I have some diffi
taxes arose.
for
fore the lessor’s
thinking
remaimng
culty in
income
arrangement
have rent
direct
assignor’s
merely
within
control,
because
convey
a
was not
fraudulent
by
he can defeat the payments
defaulting;
existing creditors,
ance;
not defraud
it did
accept
that explanation
lack
cred
future
nor
intended to defraud
was it
rate,
better distinction.
as I
At
view; nor
said,
lessor, for none was
the doctrine of
Earl
itors of the
Lucas v.
does not
col
situation,
rule this
a
to defeat
because the
here had
scheme
devised
nothing
do;
further
a vol
consideration for
taxes. Even
of future income
lection
conveyance
term,
the rent
and
its
a
untary disposal of
assets
absolutely
successive
intent, can
due
made without fraudulent
tion,
thereafter, unless the lessor re-entered.
creditor.
subsequent
questioned
not be
a
148, 26
Graham Railroad
However,
a
is not distinct
thing
say
rents
is one
its
shareholders in such
income
may
deemed
agrees
rent is
Every one
some-
tMs.
purposes
of determin body’s
objec-
income and
,it
against it;
is quite
the tax assessable
taxing
Congress
the rate wMch
tion is to
at
the receipt
another to
rental
of such
corporations,
collecting
and
laid down
has
payments makes the stockholder liable to the
shareholder,
one
so far as he has
it from
all of
corporation’s
creditors.
Unless
But a
payment from the lessee.
cor-
liable to
the Em
juristic
would be
creditor of
completely it is a
however
poration,
pire Company,
example,
persons
to a stock trans
also an
who
person,
association
for their
corporate
fer
form
con-
agent whose
services in 1926 were not have chosen
the basis of
venience;
it is
and
corporation, he was
lia
Congress
imposed
ble
ques
to the UMted States for the taxes in
convenience
collectively
higher
Although
transfer
tion.
If a
of the lessor’s
them
rate.
associates,
passed
him
rent
to have
here the
can be deemed
been made to
through
any time,
shareholders, instead of
their
was back
the crea
rights
beneficiary
treasury,
Ms
parly
tion of
as a third
common
nevertheless
contin-
enjoy
advantages
corporate
recognized legal
lessee’scovenant.
No
ued to
suggested
principle
form;
only
has been
wMch a
reached
sub-
American Tel. & Cable
members of
associa-
remained
S.,U.
Cl. 326.
longer
them when
will
receive
; they
tion
bargain
original
another
the share-
It is
whether
made with
reserved was
rents were
280 (a)
holders are transferees under section
More-
associates.
them as such
them and
(1) of
26 USCA §
the Revenue Act
they are
thing, if
over,
this is the main
(1).
gives
The section
an admin-
corpora-
pro hae vice
at law or
liability,
istrative
for “the
levied
tion,
escape
they will
equity,
a transferee
it is a
reason
on the
taxpayer.”
doubt
use
form for whoso
group-,
uses the
existing by
only
includes
liabilities
virtue
setting, we
being the
prescribed.
believe,
rate is
law,
the state
brothers
*4
language,
unnecessary
if we
I think it
to declare so
no violence
each share-
expressly
here;
point
reserved
payments,
as a
associates
holder,
to the
with
are