Don R. Thompson and Mildred Thompson, Petitioners, v. Commissioner of Internal Revenue, Respondent, 410 F.2d 1195 (9th Cir. 1969)

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US Court of Appeals for the Ninth Circuit - 410 F.2d 1195 (9th Cir. 1969) May 14, 1969

Don R. Thompson, in pro. per.

Francis X. Grossi, Jr., Washington, D. C. (argued), Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Elmer J. Kelsey, Attys., Dept. of Justice, Lester Uretz, Chief Counsel, I.R.S., Washington, D. C., for respondent.

Before BARNES and BROWNING, Circuit Judges, and SOLOMON,*  District Judge.


Petitioners seek review of a Tax Court holding that they were not entitled to an investment credit under sections 38 and 46 of the Internal Revenue Code of 1954 when they reacquired through foreclosure, and thereafter used, certain depreciable personal property which they themselves had at one time previously owned and used.

The Tax Court's holding is supported by the literal language of section 48(c) (1) of the Code, which provides that the investment credit shall not apply to the acquisition of used property "if, after its acquisition by the taxpayer, it is used by a person who used such property before such acquisition * * *."

The petition advances policy reasons for limiting section 48(c) (1) to situations in which the property is used immediately after the acquisition by the same person who was using it immediately before the transaction. Respondent, however, advances policy considerations for applying section 48(c) (1) exactly as it reads.

The legislative history cited to us by petitioners is at best equivocal. We cannot say that it evidences the intention which petitioners suggest, rather than that suggested by respondent, with sufficient certainty to justify a departure from the ordinary meaning of the statutory language.



Honorable Gus J. Solomon, District of Oregon, sitting by designation