James v. Commissioner of Internal Revenue, 148 F.2d 236 (2d Cir. 1945)

Oscar S. Blinn, of New York City, for petitioner.

Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Morton K. Rothschild, Sp. Assts. to the Atty. Gen., for respondent.

Before SWAN, CHASE, and FRANK, Circuit Judges.

PER CURIAM.

The sole issue presented by this appeal is whether the respondent erroneously valued the stock which petitioner transferred by gift to his son. The petitioner contends here, as he did before the Tax Court, that the value of the stock must be limited to the price at which each of the stockholders of the corporation had agreed to offer it to the others in case he should at any time wish to sell any of his stock. The depressive effect of the restrictive agreement was one of the factors considered by the respondent in fixing the value of the gift but he contended that he was not limited by the agreement to the price fixed therein; and the Tax Court so ruled. Its ruling accords with the recent decision of this court in Commissioner v. McCann, 2 Cir., 146 F.2d 385. On the authority of that case the decision must be affirmed. The commissioner having made an allowance for the restrictive agreement, the taxpayer had the burden of proving the allowance insufficient, but he offered no evidence on that issue. Consequently the finding of value must stand.

Decision affirmed.