Miles M. Sherover, Plaintiff-appellant, v. United States of America, Defendant-appellee, 239 F.2d 766 (2d Cir. 1956)

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US Court of Appeals for the Second Circuit - 239 F.2d 766 (2d Cir. 1956) Argued October 4, 1956
Decided November 5, 1956

Osmond K. Fraenkel, New York City, for plaintiff-appellant.

Howard A. Heffron, Asst. U. S. Atty., New York City, of counsel, and Miriam R. Goldman, Asst. U. S. Atty., New York City, of counsel, Paul W. Williams, U. S. Atty. for the Southern Dist. of New York, New York City, for defendant-appellee.

Before FRANK, MEDINA and HINCKS, Circuit Judges.

PER CURIAM.

This is an appeal from a judgment dismissing plaintiff's complaint after trial before Judge Weinfeld without a jury. Plaintiff sued, pursuant to Section 3801 of the 1939 Internal Revenue Code, 26 U.S.C.A., to recover income taxes. We agree with Judge Weinfeld's opinion, reported in 137 F. Supp. 778, 780, that there has been no "determination" of "the basis of" the "property" within the meaning of the statute.1 

Affirmed.

 1

U. S. v. Rosenberger, 8 Cir., 235 F.2d 69, affirming D.C., 138 F. Supp. 117, is, we think, distinguishable on its facts

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