Vincent & Sadie Marcello, Appellants, v. Commissioner of Internal Revenue, Appellee, 414 F.2d 280 (5th Cir. 1969)

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U.S. Court of Appeals for the Fifth Circuit - 414 F.2d 280 (5th Cir. 1969) August 6, 1969

deQuincy V. Sutton, Meridian, Miss., for appellants.

Johnnie M. Walters, Asst. Atty. Gen., Richard M. Hahn, Acting Chief Counsel, I. R. S., Kenneth L. Gross, William A. Friedlander, Lee A. Jackson, Attys., Tax Div., Dept. of Justice, Washington, D. C., for appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.


Marcello seeks review of a decision by the Tax Court that a partnership owned by the taxpayers had incurred no net operating loss in 1948 and that therefore there were no net operating loss carryover or carryback deductions for the tax years 1946, 1947, 1949 and 1950. We affirm.1 

When this case was before us previously we remanded it to the Tax Court for the sole purpose of determining whether the partnership, Jefferson Music Company, had incurred a net operating loss during 1948 which was available to the taxpayers, partners in Jefferson Music Company, as carrybacks or carryforwards for the years in issue. The taxpayers conceded in the Tax Court, in the hearing on remand, that the partnership had incurred no net operating loss and therefore there were no carrybacks or carryforwards available to them. There the case ends. The taxpayers' argument, that a prior erroneous decision by the Tax Court from which they took no appeal should not have been considered by the Tax Court in this proceeding, is unavailing because it was not, as they contend, used by the Tax Court as a bar or estoppel in the instant case.



Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804.