Berwick C. O'brien, Sr., Plaintiff-appellee, v. United States of America, Defendant-appellant, 439 F.2d 1201 (5th Cir. 1971)

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US Court of Appeals for the Fifth Circuit - 439 F.2d 1201 (5th Cir. 1971) April 13, 1971

Appeal from the United States District Court for the Southern District of Texas; Reynaldo G. Garza, Judge.

Johnnie M. Walters, Asst. Atty. Gen., Fred B. Ugast, Asst. Atty. Gen. Acting, Tax Div., Dept. of Justice, Washington, D. C., Daniel L. Penner, Atty., Tax Div., Dept. of Justice, Fort Worth, Tex., Anthony J. P. Farris, U. S. Atty., Meyer Rothwacks, Thomas L. Stapleton, Charles E. Anderson, Attys., Tax Division, Department of Justice, Washington, D. C., George R. Pain, James R. Gough, Asst. U. S. Attys. Southern District of Texas, Houston, Tex., for appellant.

Melvin M. Engel, Engel, Groom, Miglicco & Sullins, Houston, Tex., for appellee.

Before MORGAN and CLARK, Circuit Judges, and SKELTON* , Judge of the U. S. Court of Claims.


In this tax refund case, there was ample evidence to support the jury verdict that a portion of the amount paid by a husband to his wife pursuant to a property settlement agreement accompanying their divorce was properly attributable to her covenant not to compete in his business which was incorporated in the settlement agreement by the husband.

Neither do we find any error in the district court's jury instructions or rulings on the admissibility of evidence.

Nothing remains, then, but to direct that the judgment of the district court be and is hereby



Judge Byron Skelton, sitting by designation