314 F.2d 283: Maurice Lessin et al., Appellants, v. Anthony J. Celebrezze, Secretary of Health, Education and Welfare, Appellee
United States Court of Appeals District of Columbia Circuit. - 314 F.2d 283
Argued January 16, 1963 Decided February 7, 1963
Mr. Werner Strupp, Washington, D. C., with whom Mr. Hymen Tash, Washington, D. C., was on the brief, for appellants.
Mr. John C. Eldridge, Atty., Dept. of Justice, with whom Mr. Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Mr. David C. Acheson, U. S. Atty., and Mr. Morton Hollander, Atty., Dept. of Justice, were on the brief, for appellee.
Before WILBUR K. MILLER, DANAHER and BURGER, Circuit Judges.
This is an appeal from summary judgment affirming an administrative determination by the Secretary of Health, Education and Welfare that certain income received after 1946 was not derived from a trade or business under 42 U.S.C. § 411.
Appellants, Maurice and Anna Lessin, claim that interest from a promissory note was income derived from carrying on a trade or business, thereby entitling them to receive credit on their social security accounts for purposes of determining quarters of coverage, 42 U.S.C. § 413(a).
In 1954, appellants sold an apartment building taking an interest bearing promissory note for the purchase price. Appellants urge that the interest received on this note for the years 1956 and 1957 is income derived from a trade or business.
The hearing examiner determined that appellants were not engaged in trade or business during the years 1956 and 1957 and that the amounts received representing interest on the promissory note were not derived from any trade or business1 but income from investments.
The determination of what activities constitute carrying on a trade or business and what is income derived therefrom, within the terms of the act, is dependent upon the facts of each case. This decision is for the agency in the first instance and will be affirmed by a reviewing court if supported by substantial evidence. McDowell v. Ribicoff, 292 F.2d 174 (3d Cir.), cert. denied, 368 U. S. 919, 82 S.Ct. 240, 7 L.Ed.2d 135 (1961). There is substantial evidence to support the decision of the Secretary and no evidence to the contrary; the appeal thus presents no non-frivolous question.
The judgment of the District Court is
The Appeals Council of the Social Security Administration denied appellants' request to review decision of the hearing examiner, thereby making the hearing examiner's determination the final administrative decision