1432 Broadway Corp. v. Commissioner of Internal Rev., 160 F.2d 885 (2d Cir. 1947)

Charles Korn, of New York City (Jacob Rabkin and Mark H. Johnson, both of New York City, of counsel), for petitioner.

Sewall Key, Acting Asst. Atty. Gen., Lee A. Jackson and Louise Foster, Sp. Assts. to the Atty. Gen., for respondent.

Before SWAN, CHASE, and FRANK, Circuit Judges.

PER CURIAM.

The facts are stated in the opinion of the Tax Court, 4 T.C. 1158, and need not be here repeated. The issue presented was whether the taxpayer was entitled under section 23(b) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 23(b), to deduct interest accrued within the taxable years on its outstanding debentures. The Tax Court denied deduction on the ground that the evidence did not show that "the debentures were, or were intended to be, evidences of indebtedness"; they were "more nearly like preferred stock than indebtedness." These conclusions are not within the scope of our judicial review. John Kelley Co. v. Commissioner, 326 U.S. 521, 698, 66 S. Ct. 299; Elliott-Lewis Co. v. Commissioner, 3 Cir., 154 F.2d 292. We may add, however, that, if the question were open to us, we should reach the same result as did the Tax Court.

Order affirmed.