*1 &86
service, seniority rights. purpose Act, It shown, without we have be reasoning ques- begs preserve was to upon somewhat for veterans their tion, plaintiffs employment contend not return they occu- status they pied were entitled to their they military restored the time left serv- positions they ice, entitled to they were and not to create status which seniority rights they had, have at- would though never might been even tained had remained in defendant’s attained not had been called. employment. Certainly Fishgold probationary Two cases have held em- against them the contention. latter ployees cir- temporary employees under quite interpretation cumstances similar to the instant given Lines, case. “temporary position” words Interstate Transit has been con v. Johnson D.C., F.Supp. Doyle Divi- sidered number It v. of courts. al., 1127, etc., May 17, sion et “position” held that word means W.D.La., employment F.Supp. District Court 655. particular job and not probationary employee both cases performing. was David it was held that v. employees R., D.C., returning F.Supp. 342, Boston R. & M. service Co., D.C., were not Morgan entitled of their to a restoration Wheland seniority F.Supp. 439, were Desbrow decisions Smart & Co., Ltd., S.D.Cal., largely Final based upon contracts which existed F. Supp. 500; employer between the the union which Salzman v. London Coat of Boston, Inc., the courts considered determining In the 538. plaintiffs’ case, employment relationship. latter regularly Wimick was em one ployed by the defendant and his in judgments We in each conclude that the military duction into the service Salzman supported by case are the law and evi- employed place was under take his They dence. are affirmed. pro written contained no contract which regarding Later, vision termination. he military
left for When Wimick service. position
returned he was restored later Salzman returned and claimed he was entitled be restored. The position per held was that while employment to fill manent Salzman OF WODEHOUSE COMMISSIONER position temporary he INTERNAL REVENUE. was not entitled the benefits of the Act. No. 5694. plaintiffs employed That on a trial Appeals, probationary days Circuit Court of Fourth Circuit. (or 60) basis open question. This shown not March only by the contracts between the defend- testimony the union
ant personnel
defendant’s tes- director.
tified latter that it defendant’s policy employee’sprobationary period anas
neared to obtain its end foreman the view if ascertaining so, satisfactory. work was his em- If
ployment continued, provided had be-
come of the union in member the mean- otherwise, time; go. let he was Plaintiffs
argue giving satisfactory “were surely
service and would have attained se-
niority had prevented the draft it.” course, That, specu- in the realm of plaintiffs’ not aid
lation cause. *2 taxpayer, Wodehouse, the
1941. Pelham G. nov- the well known numerous els, literary works. short and stories resided and has He is a British exception England France and in re- period when and he in 1936 he was in sided California. While at- his was advised torney his income could reduce that he country earnings liability one-half convey wife he would any income writings interest in his before Accordingly, them. realized from tax- England, 1938, after his return undivided payer assigned to his wife an unpublished novels in two one-half interest “Uncle called Cow-Creamer” “The notified Springtime;” and he Fred agent in the United contracts for the sale joint for the these novels should and his wife. benefit himself February Pub- Curtis On publisher lishing Company, Satur- Post, accepted Evening “The Cow- day dissenting. DOBIE, Judge, Circuit taxpay- Creamer” sent check to the $40,000 agent er’s States for the United thereof. purchase provided Publishing pany purchased story ap- all pearing periodical, and would ob- its copyright on of its tain a the contents publication magazine, there- that after completed, would in was story all author on demand in the except (including the American Canadian rights. The American) serial South Washburn, City, of New York both Watson Post circulates in the United States petitioner. for and Canada. Asst, On December Pub- Curtis Graney, Sp. Atty. Melva M. Gen. accepted lishing Company novel “Uncle Caudle, Atty. Gen., (Theron Lamar Asst. Springtime” on Fred the same Key, Stinson, George
and Sewall A. Asst, and for the same consideration as Sp. Goodner, Atty. Gen., Helen “The Cow-Creamer.” respondent. for brief), paid by Curtis money for the PARKER, SOPER, DOBIE, Before novels these two transmitted to Judges. Circuit which, taxpayer’s agent, deducting taxes, remitted commission one-half its SOPER, Judge. taxpayer and one-half balance petition seeks a This review reversal to his wife. Court Tax which de- agent July sold to deficiencies in income On tax of the termined Cosmopolitan Maga- $11,806.71 International amounts of Hearst’s $2,000 year and Canadian year American zine $1854.85 08& “My 119(a), 143(b),
serial
entitled
U.S.
in an article
Int.Rev.Code,
written
143(b).
119(a),
Years Behind Barbed Wire”
C.A.
§§
taxpayer;
August 12,
so as
143(b)
amended
agent
Com- add
categories
sold
of income
dividends to the
*3
pany
“Money
subject
in
Bank”
rights
tax;
in
withholding
and Sec-
$40,000.
novel were
in the
211(a) was
so
amended
purchased
subject to the same
engaged:
case of a
alien not
non-resident
“The
case of
Cow-
States,,
in the
in trade or business in the United
Spring-
and
in the
Creamer”
Fred
“Uncle
the same
the income
was limited to
tax
time.”
categories of
which the with-
income to
applied.
these
tax
effect
took the view
Commissioner
amendments
exclude from the
(1)
above described constituted
gains
by
received
from
tax
aliens
taxpayer
income
in 1938 and
the sale of real or
locat-
211(a) (1)
In-
(A)
under Section
ed in the
theretofore
Code,
ternal
Int.Rev.
Revenue
26 U.S.C.A.
taxable,
had been
and
divi-
(2)
include
211(a) (1)
assessed defi-
Code,-§
(A), and
categories
dends in the
of taxable income*
211(a)
accordingly.
(1)
Section
ciencies
provides
of a non-
changes
The reasons
the stat-
(A)
engaged
in trade or bus-
resident alien not
ute were set out in
of the Sen-
States,
Rep.
2156,,
there shall ate
(S.
iness within the United
Finance
No.
imposed
Sess.,
received
p.
amounts
74th Cong.,
21)
tax
2d
as follows:
(ex-
-States as “interest
within the United
“In
proposed
it is
211(a)
deposits
persons
cept
car-
interest on
with
on a
engaged
tax
non-resident alien not
dividends,
rying
banking business),
on the
the United
trade
business in
salaries,
annuities,
rents,
wages, premiums,
having
place
and not
an office or
of busi-
remunerations, emoluments,
compensations,
therein,
per-
ness
shall
be at
rate of 10
determinable annual or
dividends,
interest,
cent
from
on his income
fixed
profits,
gains,
income rents, wages, and salaries and other fixed
”
* *
(Italics
supplied) The Tax
income,
with no allow-
deter-
Court sustained the Commissioner’s
gross
ance for
deductions
from
income
mination.
against
net
credits
income allowed to
subject to
and sur-
individuals
normal tax
taxpayer
contrary—
contends to the
* *
*
tax
income.
net
This flat tax
that the monies received
and 1941
(in the usual
case)
collected at
source
purview
did
fall within the
of Section
provided
withholding as
for in section
211(a)
(A), first,
they were re-
(1)
Such non-resident alien will not be
persons
ceived from
subject
capital gains,
the tax on
includ-
second,
him,
be-
property sold
sonal
ing
hedging
so-called
from
transac-
payments were not
cause the
made
tions,
present,
having
as at
found
amounts
described
annual or
administratively
effectually to
but in each
were
instance
collect this latter
It is
tax.
believed
sum.
exemption from
will result
tax
in consider-
clearly
point at issue
will more
additional
able
revenue
the transfer
taking
account of certain
understood
taxes and from the income tax in
statute which were
amendments to the
en-
persons carrying
brokerage
busi-
year
Prior to that
the tax-
acted in 1936.
principal
increase in
ness.
revenue
gross
of non-resident aliens in-
income
able
however,
result,
from withholding
will
gross
cluded
all sources with-
required.”
dividends
heretofore not
States;
part
in the United
of this
Report
See also the .Committee
income, corresponding,
exception
with the
Representatives (H. Rep.
House of
dividends,
described
Cong.,
p.
Sess.,
2d
9).
74th
above,
(1)
quoted
211(a)
(A)
withholding
to a
tax. See 26
defenses
U.S.C.A.
Both
offered
Int.Rev.Code,
211(a)
taxpayer
rejected
defined in Sec-
court iinRoh-
§
support
gives seeming
61, decisions
mer v.
idea,
point
contro-
facts;
but when the exact
involving similar
ain
ascertained, it will
versy in
consideration,
find our-
these
cases
careful
with
were concerned
be seen
the courts
adopt
court’s conclu-
selves unable to
procedural
and did not undertake
matters
nonresident
sions.
that case a
seri-
undeniable fact that
to controvert
Amer-
received
rights,
production
rights,
al
dramatic
book
magazine
news-
ican
Canadian
liter-
picture
motion
rights to one of his
paper serial and radio
production
ary
property
stories,
effectively
separately
may be and are
book,
story, but
retained
market.
bought
*4
sold
picture
stage production rights
motion
however,
point
courts,
did
out
story.
that
of
held
there
the.
as-
regard to the
of
statute
was no sale of
because
copyrights, see
signment
of
protection
page
(153
copyright
F.2d at
a
: “Where
63)
112,
require the
17 U.S.C.A. §§
any particular
owner transfers to
trans-
copyright
holding
of
that
owner
a
.
substantially
than the
feree
less
entire
may
infringement
other-
for
sue
its
rights’
copy-
‘bundle
conferred
of
subj
might be
to more
wrongdoer
a
ect
wise
payment therefor,
right, then
whether in
one
than
the redress of
recovery
one
for
payments,
or in
one sum
several
consti-
succes-
wrong
might
be
royalties
meaning
tutes
within
211
§
persons holding dif-
suits
sive
different
For
(a) (1) (A).
such
transfer
a
parts
corporate property.1
ferent
grant of
holding,
a license.” This
as the
show,
cited
authorities
cited Rohmer v. Com-
is based
authorities
on the
in
indivisibility
copyright
missioner,
notion that a
supra,
is an
indivisible
property which
split
copyright
up
cannot
into
not show
there is
be
the the
do
parts
composed,
copy-
of which it
any anything
a
inherent
nature of
attempt
sepa-
to do so
right
does not amount
renders
separate
properties
parts
the transfer
com-
sales of
the rate
the several
assignees
merely
example,
grants
prise
several
For
the whole.2
in New
Co.,
The language
licenses.
Fiction
Star
D.C.S.D.
some of the
Pub. Co. v.
747,
meaning
firmed,
Cir.,
1That
it
2
F.
was held
true
279
limitation
of the rule
a
was
is shown
an
divisible
categorization,
examination
the authorities
in
extent
cited
Commissioner,
recognized
separate
distinguishable
supra,
v.
Rohmer
and in
copyright.
expression
rights comprising
other decisions.
earliest
17
See
appears
rule
in certain dicta of
§
U.S.C.A.
1.
Jefferys
Boosey,
Lord
in
St. Leonards
v.
point
2 final decision
815, 993,
4 H.L.
also
1854. See
I.T.
been
has not
reached
XII-2,
Second
2735,
(1933).
p.
Cum.Bull.
131
difficulty.
Thus
without
Sabatini
Wheatley, C.C.Pa.,
Keene v.
14 Fed.Cas.
Commissioner,
Cir.,
753,
2
F.2d
98
pages 180, 186,
7,644; Black
No.
v. Hen
grant of
court held that
exclusive
ry
Co.,
618,
C.C.N.Y.,
621,
G. Allen
42 F.
picture
wide motion
world
ten
433; Empire City
9 L.R.A.
Amusement
years
alien
of a book
a nonresident
Wilton, C.C.Mass.,
132;
Co. v.
134 F.
for a substantial
sum was
Co.,
New Fiction
Co.
Star
license;
not a
Gold
sale but a
C.N.Y.,
994; Goldwyn
D.
220 F.
Pictures
Commissioner,
Cir.,
smith
2
143 F.
Corp.
Co.,
Cir.,
v. Howells
2
282
Sales
majority
466,
of the court held
2d
F.
Witmark & Sons v. Pastime
grant
picture
motion
that a
of exclusive
Co., D.C.S.C.,
470,
Amusement
F.
298
sale;
play
was a
Gen
Cir.,
affirmed,
4
mean ” amounts on dividends first time were come.’ which for the It seems to us that this purview included within the statute. to an of the Act amendment province It is powerless not the make.4 court to im- court pose upon income which an item of on this second answer Congress decided not considered branch is based state- to tax. Re- Congressional ments in the Committee ports amend- with reference to the 1936 passing A reference said that the tax on wherein it was ments arguments the' pending case to capital be- gains of aliens was excluded fact Reports with ref Committee effectually impossible cause it found erence the 1936Amendments referred in it, was believed to collect and because it general terms to fixed and determinable productive amendment would be using phrase income without the entire additional revenue substantial amounts of period “fixed annual system replaced im- theoretical * ** income”; ical and from this practical great num- of administration omission it was contended that words payment of a ber of cases. Since the interpreted should be were found copyright privilege not at all sum for a Reports in the Committee rather than in effectively, and since to collect way in which were used Congress sought substantial amounts of say statute. sufficient to know taxation revenue of non-resident of no substitution of aliens, concluded the court language Report payments to non-resident aliens of the statute to which it relates. right privileges were within the included proves Since we reached argument have the conclu obviously statute. sion that received by for it would lead to conclu- too much all, sion, expressly pre- were not taxable regulations which the we have question no occasion to consider clude, capital gains wheth from the sale er estate, easily taxed real could be as ascer- Commissioner should less than the total amount received from and collected as the from the tained *7 subject .Publishing Company literary property, cov sale of to tax. Moreover, report publication rights Senate ered of the also in quite out United hereinbefore set makes Canada. Nor mittee question difficulty taxing author- have occasion to consider clear the experienced previously and the whether reduce ities had could by transferring (cid:127)manner in which the losses incurred ex- taxable income his wife cluding gains from the real and share of sale of up. productions publication. to be made The his before capital gains, showed that the tax on Reversed. including hedging so-called transactions, was to be excluded since it DOBIE, (dissenting). Judge impossible effectually had been found On the and reason- tax, I dissent. collect the but that it was believed Commissioner, Cir., ing of Rohmer exemption would result in consid- I think 153 F.2d erable additional revenue from the trans- should Court of the per- from the income Tax fer taxes and tax on business, carrying brokerage affirmed. sons 4 gain say involved not meant that a bearing ruling payment no is never to taxa sum way example, in no related to statute. For tion under period Raphael, exercised held in Commissioner v. subsequent contingency interest on a paid judgment which was formance. under the was taxable