Mullin Building Corporation v. Commissioner of Internal Revenue, 167 F.2d 1001 (3d Cir. 1948)

Albert W. James, of Wilmington, Del., for petitioner.

Theron L. Caudle, Asst. Atty. Gen., Sewall Key, George A. Stinson, and Carlton Fox, Sp. Assts. to Atty. Gen., on the brief, for respondent.

Before GOODRICH and KALODNER, Circuit Judges and FEE, District Judge.

PER CURIAM.

Petitioner in this case seeks a reversal of the Tax Court's affirmance of the determination of a deficiency made by the Commissioner. The one question involved is whether certain securities issued by the taxpayer corporation are to be treated as preferred stock or an interest bearing obligation. The amount of the tax is not in dispute once this question is decided. The Tax Court upon a thorough examination of the facts has come to the conclusion that the securities are preferred stock and affirmed the Commissioner's determination of a deficiency accordingly. There is no doubt in our minds that the case presents a typical situation for the application of the Dobson rule as there expressed and as applied in the decisions which have followed it, especially John Kelley Co. v. Commissioner, 1946, 326 U.S. 521, 66 S. Ct. 299, 90 L. Ed. 278. In addition, we feel no doubt that there is substantial evidence to support the view of the facts taken by the Tax Court and, therefore, we are not confronted with the question whether the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., has made any change in the law.

The judgment of the Tax Court, 9 T.C. 350, will be affirmed.