*1 This is not a case where the officers an automobile on without a warrant high- grounds upon came upon warrant, an automobile the to insufficient obtain way being operated suspicious opportunity under con- if the obtain a warrant they tip ditions or received a where were coming “John Doe” town into was I am in accord liquor a carload which trial court that information they description. did not have the exact Bradley shortly Officer received before They description detailed mortgage the date of the was transaction They going they look car. knew gen- not of such a nature as to establish having Pick-Up for a 1957 Ford knowledge eral within the De- Police Tag License, 1957 Oklahoma Number partment reputation of a law viola- they 234T906, they saw it tion. going stop it and search it. I am also in full accord with the court’s being op- fact that the was judgment denying grant- a forfeiture and highway make erated not did ing a am, therefore, remission. forced thing place uncertain or respectfully dissent from the place searched. The to be searched my judgment. reversing associates just as definite as if warrant de- “126 South scribed house numbered Street, City
Main of Podunk.” difficulty which the officers they
found themselves was that could
have obtained warrant the search be- they cause war- had insufficient facts to magis- rant the issuance of one
trate. The court found Gov- “The ernment concedes Duberstein, Mose Sylvia DUBERSTEIN and said officerswas not suf- received wife, Petitioners, band hus magistrate ficient for a to issue search warrant.” That court COMMISSIONER OF INTERNAL REV appeal. on ENUE, Respondent. though officers, they did probable have cause for the issuance of a go warrant, could out and watch for this any Sixth reason, reason, Circuit. car for upon without they suspicion, April 8, mere if when being operated saw it or other car under conditions would lead a reasonably prudent person to believe that being violated, they
the law could they stop search it. what did along They ?
see when the car came saw operated speed,
a car at a reasonable manner, proper and lawful and without single suspicious circumstance support the conclusion that law being violated. Under those circum- they tip stances, not but- attending by suspicious
tressed facts or up- saw
circumstances when the car highway. on dangerous me to be a would seem that an officer to hold
doctrine search
29 buying business with each other in the selling peri- over a of various metals years. od of Berman Duberstein and personally acquainted. On oc- some corporate casions when officers these two other, to each Berman would questions ask of about names consumers who used chemicals. Duberstein various gave Berman of such consum- the names ers known At to Duberstein. some time year 1951, in the Duber- Berman called stein and told him some of the given help- Berman was so formation ful that he felt he wanted to Duber- present. he had stein lie stated that request- Cadillac car for Duberstein and ed him to come to New York to receive Duberstein ad- At that vised he did feel Ber- company anything, him owed anything expected for that he had not given Berman, and had compensated. He intended tes- to be accept he tified that Berman insisted Ohio, so. Kusworm, Dayton, Cadillac car. Duberstein did No Sidney G. further had between conversations were petitioners. for receipt Berman, of Duberstein after Dept, Freeman, of Jus- Charles B. car, concerning question of C., tice, F. Washington, Andrew D. taxable whether it was or was Gen., Acting Atfy. Oehmann, Lee Asst. compensation. undisputed that Graney, Jackson, I. Arthur M. A. Melva employee of the Duberstein was not an Washing- Dept, Justice, Gould, Attys., of Corporation Mohawk Metal respondent. ton, C., brief, on the D. agree- understanding was no Judge, Before between him Mohawk Metal ment Judge, MILLER, Circuit O’SULLI- compen- Corporation that he was to Judge. VAN, District any way for information sated Judge. O’SULLIVAN, District question in case wheth- The sole agent of the Internal Rev- er taxpayer Cadillac automobile received Department got in touch enue with Du- year Duberstein his berstein and stated charge intention to Corporation, was
from Metal Mohawk receipt Duberstein with of income or taxable income. in 1951 in the amount of fair market and affirmed found that it value of Cadillac. Duberstein Inter- the action of the Commissioner the matter to his one ferred assessing deficiency nal against Revenue Flagel, who then learned that Mohawk including in his Corporation had Metal deducted ex- $4,250.00, the 1951 income the sum of pense the value of the Cadillac car on its fair market value Cadillac. 1951, classifying tax return item paid to as a “finder’s fee” Duberstein. Duberstein was President of Duber- Flagel Company Dayton, several letters to Iron wrote and Metal stein concerning got matter, Ohio, no and Morris Berman was President man Gorin, Corporation response. contacted one Metal Mohawk New prepared corporations who the income accountant York. These done two Corpora- for Mohawk me a tax return Metal him he didn’t anything. well, said, tion. Evidence owe me And he Gorin, Mohawk’s had a Cadillac car as *3 countant, prepared return the 1951 tax should send to New York to receive it, corporation, finally for the I he discussed I did. told nothing, matter of this automobile with him he I Cadillac owed me and following gave Flagel expect anything didn’t in- formation, of his talk with Berman: account and I didn’t intend to be compensated, but he insisted “Well, he Mr. had talked accepted Cadillac car.” explained Berman and foregoing if the Cadillac was record- The that is clear evi- and distinct ed dence it would not be deducti- of the donative intent of Berman arrangements ble as Mr. Berman wanted to at time such. made that know how would be deductible.” deliver the it Cadillac car. This evidence impeached, and we think The Tax Court concluded as follows: Tax Court was in error in its assertion “Upon record, we conclude any proof that the record was barren petitioners carry that have failed to of donative intent. The Court proving the burden of the auto- that part ferred lack of donative intent on the of Berman because his gift. only justifia- mobile was a The corporation took ble inference is that the by the value of the car as a business ex- payor was intended to be re- pense, classifying it as a fee”. “finder’s muneration for services rendered to If, fact, in there was at donative intent by Duberstein.” it involved, time of the a subse- event primarily upon It bottomed its decision quent change by of mind donor at in- significant- its ly “the record is change come tax cannot the charac- revealing any in- barren of evidence was, gift ter of what in at the time part payor make tention on the of the it was made. The evidence received as to gift.” the conversation between the accountants for Mohawk Metal taxpayer met We believe that the Corporation clearly indicates that treat- pre his burden of sumption ing what been a aas business de- favor of the correctness afterthought duction was either an or a disap Commissioner’s assessment change part of mind on the of Berman. peared by evi when met uncontradicted * * * explained “He to Mr. dence automobile was a that the Cadillac if the Cadillac was re- gift. The Tax was of the corded as a it would not be de- by that there was no evidence introduced ductible as such. Mr. Berman want- taxpayer in as to the donor’s donative ed to know how it would be deducti- this, we tent. think the ble.” disregarded the effect of the uncontra testimony. It was dicted foregoing strongly The indicates bring himself, donor, prove that at the time of the discussion his donative intent. The un with his Mr. Berman was gave an contradicted account about this Cadillac as a said and done the time what that a decision fact then have been occurred. event intent that made to label it “finder’s fee” and prevailed control the should character of deduction, change claim as a it does not Duberstein testified as fol the transfer. original character of the transaction. lows: The Government offered no evidence to contradict Duberstein. Berman) (Mr. me “He that appropriate I—information due to the fact that rule has been stated helpful, Opinion him was so that this Court felt that he wanted to Denison in case of Pottery Rookwood generosity inference kind of the of Internal v.Co. Commissioner here involved so rare it must 45: 45 F.2d necessarily from alone be fact why tax- “We see no reason suspected.” payer make its did not We hold that bur- met his proofs value; den of Cadillac was show is, the decision proofs of the Tax Court so introduced when the cordingly, unchallenged reversed. mained analysis, it by destructive Judge (dissenting). commissioner of the *4 in accordance issue ample decide the As I case, view this appearing before support circumstantial evidence to think, him; was, we and it Commissioner of Internal Revenue and view.” same take the of the board to the Tax appel- Court in lant automobile, received the Cadillac v. Commission- In of Lunsford the case F.2d the valuable considera- er of Internal am, tion of prin- services rendered. there- 740, 742, reaffirmed fore, majority unable point concur very ciple much case in a opinion. question was There the case bar. gift or payment was a whether or not a Court, compensation. Speaking for this Judge Simons said: repeatedly held that the
“We have his case has made out ‘clearly dis- he has tinctly a determi- to show’ * * * pre- nating fact. sumption the Commissioner Barney SACHS, Appellant, right procedural and cannot sur- proofs unless are vive such Margheritta C. SACHS. contrary proofs, challenged by analysis, and we have destructive gone say the tax- far as so may payer’s evidence it- affirmative Third Circuit. challenge self contain Argued Jan. for such and furnish the material analysis.” 1, 1959. April Decided We find that offered was, in It the Cadillac proofs or analysis. destructive contended such suspicion as we should add
case
presumption of correctness aid the defi- assessment
Commissioner’s
ciency. do. can not These mat- This we decided on evidence. should be
ters Commissioner, Lunsford v. supra, characterized Simons follows:
attitude most, Board's “At suspicion, upon mere
rests