*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
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