*1 by the Tax Court findings of fact review of whether America, a determination UNITED STATES of

is limited clearly Plaintiff-Appellant, erroneous. findings are those Reve- of Internal v. Commissioner Thomson 1969). In nue, Dorothy al., BLANKINSHIP et we are un- presented, view of the evidence Defendants-Appellees. the Tax find- that Court’s able to conclude clearly America, were errone- in this case ings of fact UNITED STATES of Plaintiff-Appellant, ous. additionally argues petitioner The Dorothy al., BLANKINSHIP et incompetent, the decedent was even if that Defendants-Appellees. under the “substituted gifts were valid 75-1704, Nos. 75-3722. in In Re Guardian rule set forth judgment” Christiansen, Cal.App.2d ship of United States Court of (1967). This rule allows a Cal.Rptr. 505 Ninth Circuit. gifts incompe from an to authorize Oct. very limited conditions estate under tent’s Rehearing and Rehearing En Banc court,“where appears by the as stated or 14, 1977. Denied Jan. ward, that the if all the circumstances from man, sane, reasonably prudent as a would 424, Cal.Rptr., Id. plan his estate.”

so the rule enunciated It is clear that

at 522. only applied

in Christiansen circumstances where the court was

unusual position supervise withdrawals from

ain applied not be ward’s estate. It should petitioner where the present case to have the transfer validated after

seeks Accordingly, fact. we find that judgment” applica

“substituted rule is not this case and we conclude

ble to facts of finding the Tax Court was correct in January 1967 withdrawal did gift.

not constitute a valid petitioner

All other issues raised merit.

are without of the Tax Court is af-

firmed. *2 Strass, (argued), Dept, of Atty. Jus-

Carl tice, C., Washington, plaintiff-appel- D. lant. (argued), J.

Edwin Welsh Welsh & Winfree, Portland, Or., defendants-ap- pellees. MOORE,* skewed. The KILKENNY and evidence before it

Before was inade- SNEED, Judges. quate Circuit to establish the rate of interest would have been person available to the

SNEED, Judge: from whom property has been taken presented by these primary issue he, had date taking, invested the interest rate is whether the cases any total amount of origi- *3 Taking Act, of by the Declaration specified deposit in a nal marketable debt se- applicable is to each (1970), 258a 40 U.S.C. § by curity issued the Treasury United States regard taking without to pursuant thereto having commencing with the The prevailing rates. United interest then taking date of and ending with deposit the States, is, the contends that appellant, in the registry of the court of the entire appellees the assert otherwise. More while deficiency proper interest. Evidence appellees the the assert particularly, tending to establish such a necessary rate is percent employed by of 8.5 and 8 the rates fairly just compensation to fix the to which computing court in the “interest rate trial person deprived the of his land is entitled. 30, May the from 1973 in required Without evidence of such a rate the rates taking] date of to date date of very likely may [the [the selected have unduly been just give compensation” to was judgment] by influenced rates applicable to loans more appellant the while contends that proper, speculative one to the United States. employed have the court should the trial Therefore, we reverse and remand for fur- percent 6 statutory rate of in both cases. proceedings ther not inconsistent with this secondary the contentions raise issues These opinion. viz., cases, under what circum- these of greater percent rate than 6 I. is a Facts. stances such and in what manner are cir- proper May On the United States filed established. cumstances two declarations taking complaints of and primary issue we hold the Fifth As to the in condemnation to title vest in the under certain circumstances parcels Amendment States to several of by land held of a require appellees. the use rate of interest in these States, pursu- does The United statute, percent. $228,285 of 6 With to the excess ant to parcel for $697,433.75 issues, secondary hold that the determi 1 and parcel 3, we for it esti- sums proper just of a compensation, whether and reasonable mated to be nation regis- percent required excess of 6 and try rate in the district of court. See 40 U.S.C. ques (1970). trials, of such rate is a factual jury just the amount 258a After true § by for parcel and should be determined trier 1 tion found be $678,881.75, In this we follow leaving unpaid fact. our observations deficiency of of Land, $450,596.75. 100 Acres United States v. More just compensation in True for Calif., Less, County, in Marin 3 was parcel $2,107,500, or found to leaving denied, 1261, 1972), 1269 $1,410,066.25. cert. 414 an unpaid deficiency of 119, 54 94 S.Ct. L.Ed.2d U.S. judge The district then undertook to fix However, we also hold that the trial court placed the value to be on case, fact, as acting payment the trier did deficiency in this of the amounts. He not consider evidence we believe considered testimony and affidavits of importance establishing proper great bankers and the clerk district court Specifically, reasonable rate. the trial which the “prime and set forth rate” well as highly did not have before it certain rates to three and six month with the deposit by evidence result relevant certificates issued certain Ore- may improperly gon banks, selected have been and 90 180-day rates Treasury Moore, Judge, Court of Leonard P. Senior * Honorable United States Circuit, sitting by designation. Second debt of interest payable $1.00 trial court awarded due and today, pays The bills. parcel 1 8.5 less than percent interest, he owes. A zero rate of parcel purposes, and 8.0 does economic not exist. deficiency.1 These are principles applicable to pursuant takings Declaration of Tak Compensa- of “Just As Part a Interest II. ” ing Act. purpose of the Act is to tion. provide a means which the United States compensation to Payment of acquire quickly can a fee simple absolute is taken emi whom from one title to land taken “for the use of the by the Fifth required domain nent United States.” 40 U.S.C. (1970).2 258a § United States Amendment. a treat consequence, As we the Act as one L.Ed. 336 63 S.Ct. particular authorizing a means States, Jacobs power of eminent domain can be exerc *4 26, (1933); Seaboard Air 78 L.Ed. 142 S.Ct. ised.3 States, 299, 261 v. United U.S. Ry. Co. Line (1923); 354, 67 L.Ed. 664 United 43 S.Ct. Takings under the Act do not in 163, 281, 41 S.Ct. Rogers, v. 255 U.S. States payment the of volve interest on the (1921); v. cf. United States 566 L.Ed. 65 deposited amount in the court as an esti Inc., 585, Hotel, 329 Point U.S. Thayer-West by acquiring mate the party 398, (1947). 521 Just 91 L.Ed. 67 S.Ct. payment compensation. The of such inter domain cases con in eminent specifically is est disallowed. This in no the value of equivalent of “the full sists way the Fifth contravenes Amendment. paid contempora- . . . [property] the The amount is “on account of the Phelps taking.” with the v. United neously is just compensation” and available to the 611, 341, States, 47 71 L.Ed. 274 S.Ct. interest.” Id. “parties in With respect to perfect and (1927). equiva- This “full 1083 there is no delay this amount in payment shall put means that “the owner be lent” would compensate. for which interest as position pecuniarily he would good as is true with This not any to had if his not been been have deficiency. compensation” “Just requires Ry. Co. Air Line v. Unit- Seaboard taken.” of the land compensated that the be States, owners supra; States v. United ed deposit the in the of this amount. requires This a court supra. standard appellant argues that principles in The necessary amounts the extra ascertain are not “just compensation” applicable not be shall suffer loss “that owner order of the compensation’ proper have to cause the failure official to ‘just shall and amount of deposit “just compen is Air Line the entire he entitled.” Seaboard States, According- appropriation prop to an supra. sation” is akin Ry. Co. v. United by paid erty government when officials without au “extra amount” must ly, an thority Congress. payment com- See United States taking precedes the 203, 207, Goltra, is a “[ijnterest proper at a rate 312 U.S. 61 85 S.Ct. pensation; This is true Air Line passim measure.” Id. because L.Ed. 776 Seaboard good States, discharge to a Ry. tomorrow Co. v. United pays $1.00 he who Act, 75-3722, involving parcel 3. The title of the which is codified as the case No. 1. The Act, Taking Declaration of 40 U.S.C. 258a judgment § to trial entered went later (1970), it as time, described By there been a date. this had a later sharp drop rates. This indicates the in interest expedite An Act to the construction of sought rough average at a to arrive buildings trial court outside of the District of and works during prevailing enabling possession the defi- of rates and title of Columbia unpaid. ciency was in advance be taken of final sites to acquisition proceedings thereof un- power States, of eminent domain. der the Bishop 288 F.2d See (1931). Bishop See v. United 1421 1961). Stat. (5th Cir. States, 1961). Claims to 67 L.Ed. “prime 43 S.Ct. commercial rate,” the rate appropria- unauthorized arising from such applicable to certificates of deposit issued against most tort claims are at tions by certain Oregon banks, and Treasury States, rights protected by the not bills. From this it arrived at the per- 8.5 such, argument As Amendment. Fifth cent rate applicable parcel 1 and the 8.0 from whom land was taken the owner goes, to parcel 3. only provided by to that interest entitled areWe reluctant to disturb this viz., Act, percent. finding only and do so because we are con reject this construction of the Act. We proper vinced that the applica interest rate impose good on faith accept would To obligation ble to an just compensation by proper estimates may well be lower than that applicable to officials, which are determined to be inade- Moreover, other borrowers. this lower rate quate, a characterization undeserved factu- particularly relevant here because the addition, ally. nothing In there is pay the deficiency is obliga an language suggest of the Act to that Con- States, tion of the United a creditor whose regarded employed an official who an gress obligation embodies no risk of default. Sei prudent subsequent estimate more zure of land under the Declaration of Tak justified acting beyond scope events ing Act is an act the United States authority. Finally, his the appellant’s which it substitutes for ownership land, mingles of the statute tort view and emi- together with the risks thereto, attendant in an nent domain notions awkward manner obligation of the United States which is *5 likely to have been not intended Con- free of risk of default. The maturity reasons, these gress. For we cannot accept date of is the date at which view that a claim of interest with re- deficiency and the proper interest deficiency to a spect stands on the same Thus, in the court. the obligation footing consequential as does a claim for may equivalent more to a two or three- damages, profits, such as future loss of year Treasury note or bond than a 90 or moving expenses, certain etc. Cf. United 180-day Treasury bill. 369, 376, States S.Ct. 87 L.Ed. 336 United States v. Therefore, we do not consider the trial Corp., General Motors court’s use of such bills as adequate to 89 L.Ed. 311 S.Ct. counter the distorting effect of the other data it considered. Such other data in- These observations lead us to con obligations volved not as riskless as those of percent figure clude that the 6 employed by the Treasury. We believe that the trial Congress in the Declaration Taking Act court should have focused more on that cannot be viewed as a ceiling on the rate of type of marketable debt security computing just interest allowable in com which constitutes a direct obligation of the pensation with to a deficiency. It States Treasury having will, course, a operate as floor. No lesser approximating during which the percent than 6 is consistent with the deficiency unpaid. Data of this type Congress; greater a rate no intent appears in Treasury Bulletin4 and the some instances will contravene percent Federal Reserve Bulletin. the Fifth Amendment. acknowledge We that our may remand Determining Proper III. Rate. change lead to but little in the 8.5 and 8.0 strongly suspect We previously that in this case the rates selected. On the other hand, use of 6 is barred the Fifth we are not certain of this and more- mentioned, already Amendment. As important over believe it to establish the pertaining trial court had before it evidence relevancy type of data described particular significance setting pears regularly monthly Treasury 4. Of is the table Bulle- Treasury ap- g., Treas.Bull., July, forth “Yields Securities” which tin. E. 1976 at 79. tion to pay the mar- the owner acknowledge that We also above. against the United taken. Undue emphasis, of a claim

ketability Declara- under the here, monetary returns from obli- upon for a States considerably less than Taking Act gations Treasury is not tion security of public debt of a marketable warranted. for this allowance Some States. the United affirm the of the lower I would unreason- of fact is not trier by the feature respects. in all able. intend- remarks is nothing in our Finally, un- authorities which those condemn

ed to use of approved circumstances their

der interest, rates or other legal rate of

a local to rates keyed explicitly

not bonds, bills, notes, and Treasury marketable just compensa- measure as an alternative COX, Sr., Bankrupt. Wilbur In re James g.,E. payment. tion Land Tract or Parcel of Certain v. A States COX, York, Appellant, now Rhea Nita Ga., F.Supp. 30 County, in Chatham at- purpose is to draw Our (S.D.Ga.1942). COX, Sr., Appellee. Wilbur pro- James such securities the fact that tention in this very useful source data a vide No. 76-1336. of case. type Court of United States and REMANDED. REVERSED Circuit. Tenth (concurring KILKENNY, Judge July 1976. Submitted dissenting): Decided Oct. substantially agreement I am in majority, which is said everything to the which remands language

except that *6 “ attention . to focus its court district type of marketable on that

more a direct ob- constitutes security which

debt Treasury hav- of the United States

ligation approximating

ing unpaid.” was

during which the district am convinced

I its evidence in adequate relevant

considered rate of interest of what

determination com- required by

constitutionally its say that I cannot provisions.

pensation 52(a). FRCivP clearly erroneous.

finding is

Moreover, agree that the “Sei- I do not of Tak- the Declaration land under

zure of act the United States Act is an

ing land, ownership it substitutes

which thereto, the risks attendant together [Emphasis of default.” the risk

free fundamentally analysis is This

supplied.] substi- the United States What

unsound: obliga- is its ownership of land

tutes