*1 tax- basis deprive electing installment accrual advantage
payer an extent enjoys to that taxpayer
basis It the Act. purpose of would frustrate the taxpayers accrual basis is not denied that in- profits net computing their excess for their allowed deductions
come have been expenses, expenses, collection operating in which year like
losses and the they were although at- they incurred We do pre-1940 sales. tributable to the statute that the direction compute taxpayer to electing requires the “in accord- basis accrual
his income on the by the prescribed regulations ance approval of the Sec- with the Commissioner regula- aof
retary” authorizes issuance spirit of not observe the
tion that does Con- will of faithfully carry
Act Tax Court
gress. decision
Affirmed.
KNOTT CORPORATION FURMAN.
No. 5589. Appeals,
Circuit Court of Fourth Circuit. June 27, 1947.
ofWrit Certiorari Denied Oct.
See S.Ct. 111.
GRONER, J., dissenting. C. Oast, Jr., Ryan, Jr., W. L.E. John Norfolk, (White Ryan, both of Va. Norfolk, Va., Schlater, F. M. York New Norfolk, Virginia the district of resi- Kellam, of City, Edwin C. defendant, as plaintiff or dence of either Va., brief), appellant. on the statute, provided by applicable venue (Baird, Norfolk, Baird, Va. Edward R. contends U.S.C.A. 112. Plaintiff § D. Hitch- Lanning and Vernon White & *3 defendant, by proper the is because venue Va., brief), Norfolk, on the Jr., ings, all of Virginia, doing within the State of business appellee. for to suit and service of has consented PARKER, Judge, GRON- Circuit Before applicable Virginia statute there under the States ER, United Chief of the Justice and cases instituted venue has waived as Colum- District of Appeals for Court of the against in of that state. the federal courts it special assignment), and (sitting bia doing been Defendant denies that it has DOBIE, Judge. Circuit that, if Virginia says business and also operation of doing what the it was the PARKER, Judge. Circuit the doing hotel constituted business within appeal judgment is an from a for This statute, on meaning of was done the this damages negligence plain- case. The has territory to which the statute Furman, Mary tiff Mrs. Hale a citizen is application. no Massachusetts, of the State of in- who was jured in March 1945 the course a fire defendant, The first contention of damaged which the Chamberlin Hotel on question of basic this is on Military Monroe Fort Reservation at venue, negli on but also Comfort, Virginia. Old Point Defendant considered, gence, was later that it is corporation, having prin- Delaware is a its all, operating hotel at and hence cipal place York, New business and way doing was not as to business in engaged was time at the fire in subject to service of it under operating plaintiff the hotel. The in- was Virginia neg for statute render it liable jured attempting to while lower herself ligence oc in connection with the fire that story from fifth window the hotel to a merely curred. Its contention is that it was rope roof below means of bed giving government in advice to the the op sheets, which broke while was engaged she making eration of the hotel and audit in making the alleges descent. negli- She time to hotel’s accounts from time. gence part on the defendant in con- nothing There is in this contention. The origin fire, nection with the of the de- conclusively evidence shows that defendant lay in fighting it and with giving notice operating was furnishing the hotel and guests therof to the in the hotel. Defend- services, materials, all labor well as and as negligence, ant charges denies contributory supplies required opera articles and for its negligence and denies that is venue manager charge opera tion. The of the ' proper. There judgment was verdict and employed paid by tion defendant plaintiff, appealed. for defendant has persons employed the 293 other were on While argued numerous matters have been premises. moneys The fact that the used us, presented before ap- case as operation, derived from the that a peal principal itself resolves into three pro United States officer onwas hand to questions: (1) proper? Was the venue (2) government is tect interests Was evidence to take the case to the and that sue directives defendant was jury? and (3) properly Was the case sub- paid a for sum while fixed services judge’s mitted under charge? We profits operation govern net towent questions think all of these that should be ment, together of these taken do not —all answered the affirmative. negative either the de important question
The most responsibility fendant or defendant’s before us operation relating to venue. hotel. contract Defendant chal- be lenges defendant tween United the court on States ground that, that, plaintiff clearly before shows since is a citzen of us while the many defendant was restricted in ways Massachusetts and defendant a Delaware corporation, operation hotel, suit in it was the Eastern the de- District government
fendant not the that was It will be that under section noted running nothing in the business. There is three of the statute the of business parol justify evidence which would appointment deemed to afi of the Secre contrary prop- judge conclusion: and the tary process agent Commonwealth as erly jury effect. instructed appointment whether formally has been Question made or not. point that, been raised as We shall later to whether purposes this venue, should not limited to the companies mentioned in Military section but we the Fort Monroe Reservation clear apply intended does it was not differ business else- to foreign corporations generally. Virginia; where in the Eastern District of *4 doing highly and, statute is of a we it clear that such of nature remedial business amounts to to the service under principles, liberally familiar to consent be n construed. Both the process upon of Secretary Com- of the foreign corporations Virginia monwealth and consent to of be 1, foreign section mentioned in insur sued in the federal court of the district as companies, guaranty companies ance etc. well as in the state courts a required in 2 ap mentioned were section of cause action which arisen there. point the of Secretary Commonwealth Virginia, Supp.1946, The Code of section agent process, sepa the service of provisions: 3846a following contains being rate section devoted to insurance com corporation panies, Any foreign guaranty companies, doing busi-
“1.
etc. so as to
by
power
ness
State shall
bring
this
written
of
them
in
under
statute whether
attorney appoint
Secretary
corporated
of the Com-
“company”
or not. The word
“corporation”
monwealth and his
its
includes
of
successor
office
is a word
attorney
purposes
true and lawful
for the
meaning;
broader
and it is reasonable to
hereinafter stated.
company”
construe the
“such
in sec
words
any
tion 3 as intended to embrace
of the
company,
Any foreign
insurance
“2.
para
entities
preceding
in the
referred
indemnity,
security
any guaranty,
fidelity or
graphs
required
appoint
forty-two
which
company
section
as defined
Secretary of
Virginia,
before
the Commonwealth as
hundred of the Code of
agent.
pur
4
shall written
Section
that
whole
doing
in this State
business
shows
pose
power
Secretary
provision
attorney appoint
code
to liberalize
his successor in
bringing foreign
the Commonwealth
the law with
attorney
and lawful
for the corporations
court;
office
true
its
into
would
and there
purposes
stated.
hereinafter
giving
be no
a
sense
such
narrow inter
pretation
3
to section
as would confine its
any
company
“3.
If
such
shall do busi-
provisions
companies, guar
to the insurance
appointed
having
in this State without
ness
etc.,
companies,
anty
Commonwealth its
described
section 2.
Secretary
attorney
required herein,
application
lawful
as
true
So far as
of the
statute to
concerned,
the State
doing
it shall
such business
at
cáse
bar is
it should be
ap-
thereby
to have
Virginia
that,
deemed
be
observed
since the cause of action
Secretary
Commonwealth
pointed
of the
sued on arises out of
done
business
within
pur-
attorney
lawful
for the
state,
its true and
merely declaratory
3 is
section
forth.
poses hereinafter set
apply
the rule which the courts would
such
case if the statute had contained
a
requirements
preceding
of the
“4.
1;
being
by doing
section
the rule
that
shall
section
be
addi-
subsections
this
foreign corporation,
the state a
derogation
any
not in
other
tion to and
as
action
out of such
causes
law, except
any foreign
provisions
business,
consents to service
power
corporation which has in effect
agent
by the statute
the state
Secretary
attorney appointing the
appoint.
required
Simon
v. Southern
attorney for
pur-
Commonwealth its
Co.,
115, 130,
be
236 U.S.
S.Ct.
poses
deemed to R.
hereinafter stated shall
492;
Wayne Life
complied
requirements
Old
Ass’n v. Mc
of L.Ed.
have
8, 22,
Donough, 204 U.S.
S.Ct.
such subsections.”
345;
Cox,
Corporation, 8
106 U.S.
Yoder
St. Clair v.
In
v. Nu-Enamel
Cir.,
Circuit Court
27 L.Ed.
F.2d
Circuit, speaking
Appeals
Eighth
must be construed
Since
staute
statu-
through
Johnsen,
with a
Judge
dealt
that, by
providing
as
tory
as
appointment
process agent, such
corporation
Virginia,
State of
foreign
.
us,
ac-
saying:
the one
“We must
before
thereby
shall
appointed
be deemed to have
24-1201,
that,
Neb.
cordingly
under
hold
§
Secretary
Commonwealth as
impliedly
Comp.St.1929,
expressly
as
process agent, and
defendant un
since the
Supreme
Court of
construed
questionably
business in
state within
did
state,
corporation
foreign
where a
meaning
(assuming
at
of the statute
this
state,
proc-
business in the
service of
valid
stage
business within the Fort
it, upon
ess
against
the state
made
Monroe Reservation was the same as
auditor,
specific appointment without a
state),
business elsewhere within
undertaking
agent. By
officer
as
would
seem to
no
to its hav
corporation
to do business in the
ing appointed
process agent.
The de
accepts
ap-
and is bound
the automatic
presumed
fendant
must
to have knowl
*5
pointment
makes,
which
statute
and is
state; and,
edge of the law of the
when it
prevented
thereby
responsi-
escaping
knowledge
did
the state with
bility to
the citizens of
state
its tri-
provision
of the law to
we
which
have
bunals, by
appoint
qualify
a failure to
or to
referred,
necessarily
ap
consented to the
agent.”
a resident
pointment
process agent
pro
therein
Supreme
rule is thus
by
p.
vided.
said
Court in
stated
23
As
Am.Jur.
Harris,
65,
“Upon
81,
theory
implied consent,
R. R.
12
512:
Co. v.
Wall.
20 L.
point
by entering
Ed. 354:
chief
state
“The
of difference
and engaging
be
in busi-
person
tween the
natural
the artificial
therein without
ness
first qualifying under
may
laws,
is that
whatever is
local
provide
former
not
valid
do
which
for
.
law;
by
statutory agent,
forbidden
service on
the latter can do
a
or complying
by
requirement
is
what
with
lawful
designate
authorized
its
can
that it
charter.
It
person
migrate,
may
some
of its
authority
pre-
exercise its
own selection or a
foreign territory upon
scribed
agent
such conditions
state official as its
to receive
may
prescribed
process
it,
service of
against
law
suits
such
place.
corporation
may
may
One
these
conditions
that
be deemed
have
to
con-
jurisdiction
it shall consent to be sued
If
sented that
there.
it do
of the local courts
presumed
over
business there it will be
it while
engaged may
to have
thus
be ac-
quired
accordingly.”
through
upon
assented and will be bound
agent
charge
business,
of such
whom it is deemed
Co., supra,
In Simon
Southern R.
v.
236
to
designated
have
purpose,
upon
255, 260,
35
U.S.
S.Ct.
59 L.Ed.
prescribed
state official as the case
492,
Supreme
Court stated the rule with
be,
may
arising
all suits
out of such busi-
respect to causes of action arising within
ness, although
on foreign
suits
tran-
“Subject
excep-
the state as follows:
to
sitory
causes
action unconnected with
here,
tions,
every
not material
state has the
corporation’s
state,
business in the
where
right
provide
undoubted
to
for service of
sought
is
to be rested on service
process upon any foreign corporations do-
upon
made
a state
person
officer or other
therein;
require
ing business
such com-
authority
whose
process
receive
is de-
panies
agents upon
to name
whom service
rived exclusively from statute,
unaided
made;
provide
also to
that in
any representative relation to
corpora-
company’s
appoint
case failure to
tion.”
service,
proper cases,
agent,
may be
upon
designated
498;
made
See
23
an officer
law.
also
Flexner v.
Am.Jur.
Farson,
Phelps,
289,
Ass’n
248
97,
Mutual Reserve
190
v.
U.S.
39
U.S.
S.Ct.
63 L.Ed.
147,
707,
987;
250;
23
Pennsylvania
47 L.Ed.
Connecti-
Fire Ins. Co. v. Gold
Co.,
cut Mutual Life
Spratley,
Mining
93,
Ins. Co. v.
Issue
243
U.S.
236,
legislatures
Co.,
agents
process
N.E.
nate
etc. Coal
217 N.Y.
for service of
in return
for the privilege
Ann.Cas.1918A 389.
local business.
That service
agent,
such an
in con-
have adverted
to which we
decisions
statute,
formity with a valid
consti-
state
express and
draw a
between
distinction
tuted consent to be sued in the federal court
implied
respect
causes of
consent with
thereby
supplanted
immunity
as to
done
out of business
action
arise
venue, was the rationale of Schollenberger’s
do not
within
those which
so
the state and
case.”
latter,
former, but not
arise.
to the
As
implied
equivalent
that which
consent
Applying
the case
bar
at
express.
Only
to causes
“common sense” which Chief
Waite
Justice
done
arising
action not
Supreme
ap
is said
Court to have
any question
within the state does
arise as plied
in the Schollenberger
we
sufficiency
implied
to the
See
consent.
it clear that
waiving
499-501;
pp.
Lipe
also
C.
v. C.
provisions
Am.Jur.
of the federal venue statute there
O. R. Co. 123 S.C.
S.E.
30 can be no distinction between the consent to
note;
A.L.R. 248
Smolik v. Philadel-
suit
and service of
implied from
phia
Co., D.C., 222
etc. Coal
F. 148.
doing business in
state
that
appointment
out of
process agent,
of a
so
appointment
It
well
settled
corporation
foreign
where
given
agent upon
of an
whom service of
subjects
such consent as
it to suit in the
pro
can be made within a state waives the
courts of the
sub
same consent
statute,
of the federal
so
vision
venue
*6
jects it to suit
the
in
federal courts there
a defendant
be
in the
in
sued
state
the
sitting if the
jurisdic
of
elements
federal
court,
federal
as
in
court
well as
the state
present.
tion are
put
Or to
the matter con
jurisdic
if the case is within the federal
cretely,
implied
the consent
from
Corp.,
tion. Neirbo Co. v. Bethlehem
308
in
business
state
the
authorizes
165,
167,
U.S.
60
84
S.Ct.
L.Ed.
state,
suit in the
of
courts
the
service
1437;
Schollenberger,
128
Ex Parte
A.L.R.
process upon
of
designated
officer,
a
state
369,
96 U.S.
from the hotel office and that she
208
GRONER, (dissenting). C. J. re should I judgment below improp dismissed
versed and the action diversity on er suit based venue. brought citizenship was not plain either district of the residence of defendant,1 nothing
tiff or the shown, case of waiver is
nature 1939, Corp., of Nierbo Co. Bethlehem v. 167, 165, 153, 308 84 L.Ed. 60 S.Ct. U.S. 2 128 of action A.L.R. 1437. cause military belonging reservation
arose which the the United States and over exercised “entire had and
United States
jurisdiction,” the act of ces put beyond the Virginia
sion had field operation of her law.3 of the that the
In this state hold by Virginia right of the
reservation proc- “any of the state to execute
officers “any discharge legal
ess” functions”4 positive jurisdictional limita-
nullified subject would
tion federal statute requirements procedure T think law, not be state —which
done. OF INTERNAL REVE
COMMISSIONER v. HANOVER NUE CENTRAL BANK TRUST CO. et al. 270, Docket
No. 20545. Appeals, Court
Circuit Second Circuit. 24, July 1947. 24, Certiorari Denied Nov.
Writ of 1947.
See
