*1 injured ply here. is not case do, cause This at all a where for here place nature condition appellee servant, working not the fellow the was changes during him, properly progress. work The fel- nature and condition of work part of his work here perform some are, true, remain it negligence constant. There Here the was low servant. who, charged steps different employer law But the work work. unchanging provision with, having perform, assumed to is one warning it, safely done, so non-delegable duty by delegating be present person duty was essential it as regarded a whole. provision delegated, giving warning job was the one whom was one, recognized negligence. provision negligence was made. But making provision Harper Corp. warning of Mis- In sissippi, Public Service was not v. duty enough. to warn was 170 Miss. 154 So. cited non- delegable. obligation appellant, diligent state it is said: “Our to be negligence about it was consistently aligned been those which continuous. The * * discharging was negligence hold master liable employer. only for acts of the foreman or those superior agent which or are official man- findWe no reversible error in the rec- agerial acts, for those judgment ord. The is affirmed. pertain which workman, duties labor to the done when en- him gaged then there in manual operative laborer, having work ref- course, erence point, to those acts labor service which be- fellow long to the details the work and not nondelegable to those duties (Emphasis by the supplied.) master.” appellant None of the cases cites are cases O’SULLIVAN RUBBER COMMIS CO. one, like this of the failure of a servant SIONER OF INTERNAL REVENUE. perform non-delegable duty. No. 281. brief, much of So defendant’s as is Circuit Court Second Circuit. proposition devoted to the that the work June simple, danger manifest, was and there duty was warn the of defendant to plaintiff, rejected must be not in accordance the facts and con trolling For it law. would be difficult imagine a case where warning here, more necessary than where the nature the work go on, work to moving coming with the bucket into and car, plaintiff out of the while the working car assembling in the materials bucket, and unable it until it was him. None of the cases de fendant cites as there was duty Simple warn are like this. in deed the only simple work was here. But it was arrangements per because made to operator form it simply, an dip at the per, working car; in the men some one to dipper’s them of the coming warn going. Nor defendant firmef ground approach, that be changing cause of the conditions inherent work, rule, requiring in the defend place, ant to safe ap~ furnish does not *2 Voorhees, City Blake New York & of Voorhees, Helen H. Robin- (Peter V. D.

son, Stewart, Jr., and all of B. Samuel City, petitioner. counsel), for New York of Clark, Atty. Gen., Jr., Samuel O. Asst. Sp. A. Key Sewall and Arthur Armstrong^ Gen., Atty. respondent. Assts. to for HAND, CHASE, Before L. FRANK, Judges. Circuit FRANK, Judge. Circuit petition This is review a de- for of of Board Tax re- cision of ported at 42 B.T.A. found deficiency 1935 in company $4,198.37 of $1,049.59. disputed year was a petitioner In the corporation process liquida in dissolved It its rubber selling sold business tion. 1932; in then it dissolved since heels business, in engaged but has en has liquidate rapidly possible. deavored to original price, in after defaults sales notes, in was reduced payments, bearing payable semi-annually interest beginning serial maturities unpaid balance of were taken price. adjusted Prior $340,000 due liquidation had distributed share, year, in that per about $7 small, it made no being available amount At income in least its distribution. 80% interest, derived 1935 was outstanding its stock least 50% more than five individuals. owned therefore, came, directly within It HAND, dissenting Judge, Circuit L. company” “personal holding definition part. Act 351(b) (1) the Revenue Int.Rev.Acts, U.S.C.A. footnote,1 unless was not set out “corporation”. then Holding than and other a bank Personal dor section 351. Surtax on “§ incorporated company Companies or trust *«* “(a) States United State laws of the Territory, “(b) substantial whose As in this ti- Definitions. receipt deposits, is the tle— company “(1) “personal holding a life-insurance than com- term per surety company) (A) any corporation at least pany” (other means than if — gross corporation exempt income the tax- un- centum taxation Northwest is that dis Corp. contention Utilities Securities Petitioner’s powers, Helvering, Cir., 1933, es it with residual solution left 619 and affairs, up addition, cases but de there regu- sential cited. winding “corporation” within lation been stroyed status as a consistent since *3 intervening the We do not meaning statute. of the of the reenactments the law corporation require agree that we puts great a to it that dissolution accord deference. contexts, Helvering Co., beyond taxability. it is v. Wilshire 1939, In some Oil 308 18, corporation 60 U.S. we useful refer to dissolved S.Ct. 84 a L.Ed. 101. Since analogies petitioner and conclude “civilly as Rut while dead”. a remained “corporation”, writers metaphors say, (and, purpose I, some for the of are valuable 1 thinking, of they seq., et indispensable) Act, aids to the Revenue 26 U.S.C.A. Int.Rev.Acts, cautiously page seq., and with due re should be tised et un- is character; necessary essentially gard rely fictional to their ground alternative far, suggested by they may paralyze thought. respondent, petitioner carried too the York, liquidators law state of its or its Under the of New the an constitute “associa- tion,” creation, corporation by has filed a a of virtue 801(a) Section continue”, (2), Int.Rev.Acts, “shall page certificate of dissolution for U.S.C.A. 790, is purposes including corporation. the collection be treated stated as a assets, payment obligations, of of the Being corporation a purpose its affairs to terminate acts I, of petitioner is also one for the corporate pur are These business. purpose A, of Title I which the contemplated poses, as such from the birth personal holding company surtax in issue corporation; years declining the of “any here. Section 351 refers corpora life; corporation a of and it tion,” by 351(b) (4) section this term strange would that the be doctrine ful “shall the same meaning as when corporate purposes, which fillment of those in Title I.” docs sug Petitioner not here, might, require and did a considerable gest, find, nor can any justification in time, beyond stretch of is reach of the language the for exempting it under Title in scope tax broad Section statute IA without also exempting it under Title operation 351(b) (1). going con I. precedent is not condition to tax li cern ability. suggests why Petitioner no reason But, urges petitioner, the per the position should held so anomalous holding sonal surtax was enacted to into it does fit a framework in remedy the evil of “incorporated the every description, of which business units book,” pocket deliberately created to re duration, long of short must or share in personal duce the taxes of those who cre society. price the This is the cost them, and, therefore, impose ated tax the that, existence. To the effect under such a corporation upon petitioner’s in position statute, corporation is a dissolved to be perversion is the Congressional pur alive, regarded as see v. Commis pose. Jaffee We assume Cir., 1930, 45 sioner, 2 F.2d 679. deliberately aiming here was to relieve By 13(a) personal section of the Revenue Act stockholders from its Tt taxation. Int.Rev.Acts, is, however, page abundantly 26 U.S.C.A. clear that Con upon gress, evil, “every narrowly the net income of correcting levied in is not corporation”, specific section confined to the U.S. instances which sug Tut.Rev.Acts, page 683, remedy. course, gested person a return “Of C.A. all by “every corporation subject companies be made to al were in not conceived many organized this title.” 22 (a)-21 legitimate taxation under Article were sin— Regulations ; 86 shows or that the adminis- Congress business reasons but Act trative construction includes has little made distinction between the goats corporations process sheep”.2 liquida- enacting very dissolved sec applied here, being tion. also 52-2. This See article construc- tion tempting was at sustained; defense, repeatedly tion has been foreclose the avail- outstanding year able royalties, derived divi- stock owned, directly (except interest, annuities, dends, indirectly, or for not than more five regular dealers in stock or individuals.” ease securities) gains 2 Rudiek, from the sale stock Section and Personal (B) Holding securities, time dur- Provisions Company In ing last half of year taxable ternal Revenue Code, Vale L.J. (1939) per more than centum value 203. of its requirement Act returns -are Revenue to file such able under section Int.Rev.Acts, prescribed by Commissioner; page 26 U.S.C.A. Int.Rev.Acts, 54(a), profits 26 U.S.C.A. that the accumulation of designation need. of Title 1A as a responsive legitimate to a “sur- Means, tax” Ways 73d rather a “tax” is on than as immateri- See Committee- 704, al. Its Sess., original, designation Report No. was “tax”. Cong., House 2nd provisions The Senate system removed the now of this p. 12: “The effect placed found in Title 1A Title 1 provide which will be for a tax is automatically separate them title make holding com- order to levied “plain gradu- this is an additional any necessity proving a pany without tax, surtax, personal- ated income purpose Cf. Com- avoiding surtaxes.” *4 companies.” holding Sess., Committee on Fi- Finance, Cong., mittee 2nd on 73d nance, Cong., Sess., Report 2d Senate 558, 73d sug- Report p. It Senate No. 15. is ' 558, p. Finally, No. 13. bill, Conference an that of gestive earlier that revenue Report Sess., Cong., Report 73d 2d House 1928, by proposed the House Committee 1385, 20, p. says: No. which “The Senate Ways Means, contained in section on provides separate amendment for a return 104, substantially with a definition identical purposes p'ersonal this surtax on 1934, that it 351 Act of but section companies holding The House by “As was the stricken Senate because: on recedes amendment no. 45.” definitions, arbitrary all the in the case under 1A has in common the Title corporations penalize which was to effect 1 “surtax” under Title that fact up building surplus a and to properly were both are capture so in order to denominated necessities and recognize fail to tax-exempt partially interest Finance, practices.” on Committee sound applies sharply bonds. Title 1A to a limited Sess., Cong., Report No. 1st Senate 70th group taxpayers, history which 12; 960, p. Ways and cf. Committee on require particular scrutiny. demonstrated Means, Cong., Sess., Report 1st House 70th if Even there were doubt about the con- 2, Having p. indisputable before us No. Congress’ plain language, struction of exactitude 351 proof from the of Section by would be influenced the fact that by itself, reports, reinforced Committee requirement separate return is in com- establish'objective Congress wished to that plete harmony purpose with the intent and imposition tax, we can- criteria Congress. corporate motives, not, by probing into Cir., Welch, 1939, Noteman alleged to relieve from harsh- undertake held a the First Circuit that particular application a the stat- ness separate required, and return was that Tax there- The Board ute. subject a failure to file would the taxpayer fore, in sustaining correct the de- penalty. partly There the court relied ficiency asserted com- taxpayer’s fact that the return under pany surtax. inadequate Title was an disclosure of penalty, liability There the facts which establish remains the would 25% 1A, by namely, taxpayer’s under virtue of section Title that the U.S. Int.Rev.Acts, page 750, closely to stock was that for failure held and C.A. 80% royalties, argues its income return. The Commissioner was derived in- file a terest, prefer penalty applicable is made etc. not to rest on that that this We since, 351(c), peti ground, adequate by 1A section and that if in a Title disclosure not liable therefor because it did return under Title 1 excuses to file tioner is 1A, why separate company under personal holding we fail to see file the may by by inadequate not an return Art. 351-8 of cure surtax disclosure valid, amending regulation 86. If this Title 1 return. We not is need Regulations return, petitioner had fraudulent decide whether a defective if that the facts amended, properly escape status was in is sufficient substantial intent penalty, may non-compliance. not excuse its in- do but it be indicated doubt complete Tennis return Side Club v. Commis is effective start See West limitations, sioner, Cir., regu running 111 F.2d 6. of the statute of Flor- separate Dry involved is valid. A sheim Bros. States, 1930, Goods Co. v. United lation here explicitly by at return has been authorized U.S. Congress. 351(c) and a rule carried over S.Ct. 74 L.Ed. similar:- may apply penalties. provisions ap 1A administrative We surmise 1; plicable provision to Title one is the court in Noteman v. Welch felt such return, misleading turn serious- is still a however incomplete disclosure would that an may the it In the of fraud absence be. proper impair the administration ly imposed upon tax- con- an innocent quarrel revenue; not we do Commis- payer, may he throw the even however cern, merely add the fact but only upon return,— track; sioner off the falls Title 1 in a complete disclosure pass know, failing return by may who which, ought we can he all him no which given lead wholly different through channels — faith, it lead up. good for a follow Given satisfactory substitute not well him to rests check return. IA. separate return au- literally merely regulation that our seems to me For this reason statute; promulgation thorized triumph sub- letter over decision important aid practically justified as an is true that “undistributed stance. It by the of the statute administration too 351(b) adjusted income” defined net Congress entrusted agency to (3) is the “net income” (2) accordingly, cannot, administration. We tax; it is the normal but for the base of device purely formal dismiss it as income, tax is computed from that and the the kind regard precisely it as “surtax,” tax, an income and indeed even to au- intended ruling in sub- I can reason eo nomine. see no statutory the attendant thorize *5 distinguish an innocent mistake stance to non-compliance. consequences for mistake as as to it individual’s and an surtax, except puts his an individual is, therefore, escape no for There both in return. one taxpayer penalty for failure to from the justification (c) IA. this is that § file the return applicable Hamilton, Cir., makes to this all the ad- 289 F. surtax See Beam v. I; harsh; provisions perhaps ministrative of Title 9. The result return, requires title so must given since should have the Commis discretion, two Title IA. Therefore there must be appropriate circum sioner returns, I stances, the Commissioner has ruled. penalty, whatever as to abate the but question propriety no permitted to raise sympathies, our we are ruling; compel but it. the statute did not amend the Act. Hartford-Connecticut Eaton, Cir., 1929, merely had he added to the return re- Trust F.2d If Co. necessary quired by questions Title I the differently stat 128 arose under a worded IA, clearly it would been a adminis have ute which had received a different certainly compliance interpretation.3 351(c); there trative Moreover penalty imposed. comply the no could been then intended selecting one he has imposing We are because statute made mistake form, administratively wrong no found it convenient while here there cherry. particular two bites to this comply. make intention to that; penalty was meant for Ap- of Tax decision Board imposed punish delinquents; peals is affirmed. deliberately, from indiffer- who either ence, pay made effort all to. their HAND, Circuit Judge (dissenting L. taxes, merely not those who misunderstood part). By they discharge. tried duties which my agree as to all but grammatically I brothers to what is a recourse even penalty; agree I also to that bit verbal means inexorable reasoning reasoning not to follow the in Noteman v. perverting it from that Cir., Welch, 1 purpose. because a re- indicating Congressional court there noted that the stat- This intent not penalty “in failure ute case of to exact a file list”, and file a return or “return”. significance gave to the “or words list”