# Commissioner of Internal Revenue v. Nevius

> Court of Appeals for the Second Circuit · March 18, 1935 · 76 F.2d 109

URL: https://www.frixlaw.com/law-library/cases/9653026

## Case

- **Full name:** Commissioner of Internal Revenue v. Nevius
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** March 18, 1935
- **Citations:** 76 F.2d 109; 15 A.F.T.R. (P-H) 401; 1935 U.S. App. LEXIS 2477
- **Precedential status:** Published
- **Opinion:** Concurrence by Hand
- **Judges:** Swan, Hand
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9653026

## Opinion text

L. HAND, Circuit Judge
(concurring). It seems to me impossible to read subdivision (d) of section 303 Revenue Act 1926 (26 USCA § 1095 (d) as admonitory, which I understand to mean that it was added only out of abundant caution. Section 302 (26 ÜSCA §, 1094) declares what the “gross estate” shall be; the language is general and covers “all property, real or personal * * * wherever situated.” Although a non-resident may not be taxed for property situated outside the United States, section 302 makes no exception in his favor, and section 303 merely defines the deductions allowed to get the net estate. However, subdivision (b) § 303 (26 USCA § 1095' (b), starts off by declaring that the deductions allowed to a non-resident shall be taken from “that part of his gross estate which at the time of his death is situated in the United States,” and that, read with section 302, defined his taxable “gross estate.” Subdivisions (d) and (e), § 303 (26 USCA § 1095 (d, e), are specific declarations of what shall or shall not be regarded as part of that gross estate, regardless of the general test; I do not see how we can say that they are not constitutive. If so, to uphold the tax we must hold that the shares here in question were “owned and held” by the decedent. Had she had a bare power of appointment, I might have more trouble, but she had a life interest, equitable to be sure, but still an interest so far as any equitable rights can be interests. If the limitations in the will had been legal, I hardly think any one would have scrupled to say that she had “owned and held” the shares, wherever the certificates actually were; for those two words need not imply an absolute owner. And if that be true it would, I think, quite contradict the whole scheme of the title to import a distinction between legal and equitable interests, whatever view one takes of equitable interests, whether as no more than rights in perso-nam, or as' “property.” Only lawyers make that distinction to-day and not many even of them; it would be pedantic to impute it to Congress, even in a tax statute. Therefore I' think that the decedent “owned and held” the shares at her death and that they were a part of her taxable gross estate.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9653026. Public record. Not legal advice.