# United States v. Dorothy R. Garber

> Court of Appeals for the Fifth Circuit · November 19, 1979 · 607 F.2d 92

URL: https://www.frixlaw.com/law-library/cases/9466143

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Dorothy R. GARBER, Defendant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 19, 1979
- **Citations:** 607 F.2d 92; 44 A.F.T.R.2d (RIA) 6095; 1979 U.S. App. LEXIS 10349
- **Precedential status:** Published
- **Opinion:** Concurrence by Hill
- **Judges:** Brown, Coleman, Goldberg, Ainsworth, God-Bold, Clark, Roney, Gee, Tjoflat, Hill, Fay, Rubin, Vance, Kravitch
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Criticized in part by People v. Smith, 155 Cal. App. 3d 1103 (1984).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466143

## How later opinions describe it (automated extraction)

- concluding that the taxability of earnings from the sale of blood plasma “was completely novel and unsettled by any clearly relevant precedent”
- reversing the exclusion of expert testimony to show that defendant reasonably believed no tax was due

## Opinion text

JAMES C. HILL, Circuit Judge,
specially concurring:
Because I conclude that the transactions under investigation constituted services and the income derived therefrom taxable under 61(a)(1), I should have preferred that the court say so in positive terms. The question would thus cease to be a novel one for those considering it in the future.
It was a novel question when it arose here, however, and the defendant should have been permitted to demonstrate its novelty, not so that the jury could pass upon the tax consequences of the transactions, but so that the jurors could better determine the question of willfulness. The case should be sent back for retrial with the willfulness issue determined upon consideration of all the evidence.
I take it that, at some length, the majority winds up by doing just that. So, I concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466143. Public record. Not legal advice.