Petitioners Reply Brief — Baker Commodities, Inc. v. Commissioner

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Baxer Commonitigs, Inc.,

October Term, 1969 oe oe

Se PO A Sis Ee

cermceceermmentem

Petitioner,

US.

’

Tue Unitep States or AMERICA, or ces

: Saha Tae Respondent.

7

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

PETITIONER’S REPLY BRIEF.

Cart A. STUTSMAN, Jr.,

Jack R. WauiTtTE,

Hitt, Farrer & Burritt,

GLENN M. ALPERSTEIN,

GILLIn & Scott,

445 South Figueroa Street,

Los Angeles, Calif. 90017,

Attorneys for Petitioner.

2° Cae Raa ete PS OR IORI LE TIT Shae ARMS GANG Se TR TA NRE tr mc eB Rika OMe Nl EY

Parker & Son, Inc, Law Printers, Los Angeles. Phone 685-9790

SUBJECT INDEX

Page

BOCRMUEEY “StARORIENE ics oo cocncestscics hc ncecteveans 1

2

PURI © Wi esac sea a ioe

Contrary to Respondent’s Position, the Question

Concerning the Viability of the . Kimbell-Dia-

mond Doctrine Presents Appropriate Grounds

for Review by This Court .......ccccccccccccccesceesseseeoees

A. The Petition Presents a‘ Conflict in Rea-

soning and Result Between the Instant

Case and a Recent Decision of the Court

or (lane... ie SAG & fee De cee le Sea

B. The Viability of Kimbell-Diamond Pre-

sents an Important Question of Federal

Law Which Has Not Been but Should Be

etes ty “Tie Cet ne

C. Petitioner’s Reliance on American Potash

We NN ae cara cia heen iekes einen

II.

The Petition Presents Important Questions Con-

cerning Multiple Stock Attribution and the In-

terrelationship of Sections 318 and 334(b)(2),

Which Were Not Disposed of by the 1964

FAPPOTHOMICTIE 10 SOCEIORE BIG sc covevecvevevsrescnenisicsesesese

III.

The Question of Partnership Termination for Pur-

poses of Applying the Stock Attribution Rules

Raises Appropriate Grounds for -Certiorari

RN I ie a 2

2

4

10

TABLE OF AUTHORITIES CITED »

Cases | Page

American Potash & Chemical Corp. v. United

States, 399 F. 2d 194 reh. 402 F. 2d 1000. ..........

OES! SP te REO TOM nel EE pA Se nae de Sa

Brenna, et al. v. Federal C artridge Corporation, 183

5 WR ER Sen cpccanleican cetacean eee ueemee 7

Kimbell-Diamond Milling Co. v. Commissioner, 14

T.C. 74, aff’d. 187 F. 2d 718, cert. den. 342 U.S.

827,72 S. Ct. 50, 96 L. Ed. 626 .........- 2, 4,5, 8 9

Mitchell v. Greenough, 100 F. 24° 1006 .....--ssesssseeeoe- 7

Stephens v. Arrow Lumber Co., 354 F. 2d 732 ....... 7

Miscellaneous |

2 U.S. Code Congressional and Administrative

News ’64, p. 3401, Senate-Committee Report on

| gh BES. «5 Gp emrannaicbemersnree Sine care Vert Aled tent /§

Rules

Rules of the Supreme Court of the United States,

Oe SCO) eee i ine eae LNT LO SONIDO 4

Rules of the Supreme Court of the United States,

PRE SP) | carecsscisnlocesceeiecie acne igh ogaeee 4, 10

Statutes

Internal Revenue Code of 1954, Sec. 318 ......0.0002..... :

els hn se SIE SN ORR TEE AI POPOL 7, a Aas Ae Ay BO

Internal Revenue Code of 1954, Sec. 318(a) -...00.0.... 11

Internal Revenue Code of 1954, Sec. 334(b) (2) ......

RETRO = eat Hole aS, Las A Rete 2; 3, 4, 5, 8, 9-10, 11

Internal Revenue Code of 1954, Sec. 708 0.000000... ra

Internal Revenue Code of 1954, Sec. 7701(a) ....14, 15

IN THE

Supreme Court of the United States

‘October Term, 1969

~ No. 1036

_ BAKER CommopiItTIEs; INC.,

Petitioner,

a

US.

THE UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

PETITIONER’S REPLY BRIEF.

Preliminary Statement.

Petitioner, Baker Commodities, Inc., offers this reply

to the Brief for the Respondent in Opposition to pe-

titioner’s petition for a writ of certiorari.

mS

eS

ARGU MENT.

I,

Contrary to Respondent’s Position, the Question

Concerning the Viability of the Kimbell-Dia-

mond Doctrine Presents Appropriate Grounds

for Review by This Court.

A. The Petition Presents a Conflict in Reasoning and

Result Between the Instant Case and a Recent Decision

of the Court of Claims.

In opposition to the petition herein, respondent first

attacks petitioner’s contention that the reasoning and

result of the decisions below conflict with the reasoning

and result of the Court of Claims in the case of Ameri-

can Potash & Chemical Corp. v. United States, 399 F.

2d 194 (Ct. Cl. 1968), on rehearing 402 F. 2d 1000

(1968).

As we pointed out in the petition, the Court of

Claims decided in that case that the stepped-up basis

provisions of section 334(b)(2) of the Internal Revenue

Code of 1954 did not pre-empt the Kimbell-Diamond

doctrine.’ Accordingly, failure to meet the technical re-

quirements of that section was held not to be an auto-

matic bar to a stepped-up basis (measured by cost)

when a corporate taxpayer acquires the assets of an-

other corporation by purchasing its stock and then

liquidating it. Such reasoning and result are squarely

in conflict with the instant case.

Although respondent asserts that there is no conflict

with American Potash, a careful reading of respondent’s

'1Kimbell-Diamond Milling Co. v. Commissioner, 14 T.C. 74

(1950), aff'd. per curiam 187 F. 2d 718 (Sth Cir., 1951), cert.

denied 342 U.S. 827, 72 S. Ct. 50, 96 L. Ed. 626.

onlinds

brief will show that the Government does not really

deny that the rationale of the Court of Claims produced

a result which is totally inconsistent with the instant

case. Rather, the thrust of the Government’s argument

is that petitioner’s reliance on American Potash was

untimely because it was raised for the first time on

petition for rehearing and, therefore, was properly ig-

nored by the Ninth Circuit Court of Appeals. (Br.”

Resp. Opp. pp. 8-9.)

If, by this, respondent means that there is no conflict

because the Ninth Circuit refused to recognize the exist-

ence of a contrary authority, so that the opinion below

does not disclose the conflict on its face, we submit that

respondent is proposing an undue restriction on the

type of controversy which warrants review by this

Court. Notwithstanding the failure of the Ninth Cir-

cuit to comment on the American Potash rationale or

state any reason for denying the petition for rehearing,

it is indisputable that the two decisions cannot be recon-

ciled in principle; both cannot represent correct interpre-_

tations of the law. Beyond question, if the instant case

were presented to the Court of Claims, petitioner would

not have been denied a stepped-up basis under the un-

disputed facts found by the Tax Court. The alleged non-

compliance with section 334(b)(2) would have meant

only that petitioner would have received its cost basis

by virtue of the principle that the substance of each

transaction was a direct purchase of assets (disregard-

ing the intermediate step involving liquidation of the

subsidiary), instead of by virtue of the Code pro-

visions dealing with the liquidation of subsidiaries, (See

Pet. pp. 11-17.)

—_

B. The Viability of Kimbell-Diamond Presents an Impor-

tant Question of Federal Law Which Has Not Been

but Should Be Settled by This Court.

Even if it could be said that there is no “conflict”

within the contemplation of paragraph (a) of Rule 19

of this Court’s rules, because the opnion below does

not mention the American Potash case or its rationale,

we submit that the important question raised herein as

to the viability of the Kimbell-Diamond doctrine justi-

fies a review by this Court under paragraph (b) of

Rule 19. |

Respondent’s brief makes it clear that the Commis-

sioner of Internal Revenue does not agree with the hold-

ing in American Potash and will argue in future cases

that “the Kimbell-Diamond doctrine was supplanted by

section 334(b)(2) in cases involving acquisitions by

corporate taxpayers.” (Br. Resp. Opp. pp. 9-10.) As

we pointed out in the petition, the Kimbell-Diamond

type transaction is one of the most commonly used

methods whereby one corporation acquires the assets

of another corporation. The question of whether or not

the Kimbell-Diamond doctrine can be applied independ-

ently of section 334(b)(2) will certainly have to be

faced again. In the meantime, respondent’s opposition

to American Potash will lead to confusion in, business

planning and the administration of the revenue laws,

producing extensive and expensive litigation. The in-

stant case represents a ready opportunity for this Court

to review and decide the question now, thereby avoid-

ing those problems.”

2Obviously, respondent would prefer to wait for some other case

as the vehicle to raise this question. To agree to certiorari in

the instant case, would mean acceptance of an obviously unfavor-

Finally, if it is indeed the law that Kimbell-Diamond

is still viable, the doctrine should be upheld by this

Court in this very case to prevent a manifest injustice

to this taxpayer which can be avoided only if the court

grants certiorari. Petitioner has already suffered un-

fairly from the fact that Congress did not amend sec-

tion 318 until after the tax years in question. Under

the law as amended, the absurd application of the attri-

bution rules which produced the so-called technical fail-

ure to comply with section 334(b)(2) relied upon by

the Ninth Circuit, is expressly prechided. In other

words, petitioner did comply with the technical require-

ments of section 334(b)(2) as they now exist—and,

we submit, as Congress obviously intended thein to

be from the very beginning.* If certiorari is now re-

fused, but the American Potash rationale is ultimately

upheld in another case, so that even a true technical

non-compliance should not have prevented the stepped-

up basis, it will compound the incredible miscarriage of

justice perpetrated upon this petitioner. |

C. Petitioner's Reliance on American Potash Was Timely.

With respect to the question of timeliness, we. submit

that respondent’s argument is simply an attempt to -

avoid facing this important issue, which goes to the

able fact situation from the Government’s standpoint, in that

the alleged technical non-compliance with section 334(b)(2) had

no substantive effect on the transaction. It is difficult to conceive

of a clearer situation wherein the subjective intent necessary for

Kimbell-Diamond to apply could be present. Moreover, respond-

. ent is understandably reluctant to risk the loss of the large de-

ficiency which it has already won in this case.

’See the reasons stated for elimination of multiple reattribu-

tion in 2 U.S. Code Cong. & Adm. News ’64, p- 3401, Senate

Committee Report on P.*L. 88-554. (Reprinted in part in Ap-

pendix D, Pet. App. pp. 88-89.) +

—6—

very heart of the controversy over whether or not peti-

tioner was entitled to the stepped-up basis. Indeed,

throughout this case, respondent has repeatedly relied on

technical arguments without offering any reasons why

the result sought was just or in accordance with the

real objectives of the revenue laws involved.

Furthermore, petitioner denies that its reliance on

American Potash was untimely. That case was not

decided until July 17, 1968, more than a year after the

Tax Court decision in the instant case. As we pointed

out in the petition for rehearing to the Court of Ap-

peals:

“We recognize that this argument is being raised

for the first time in this proceeding. However, we

did not have the benefit of the American Potash

case when the matter was decided by the Tax

Court; and the report of the Court of Claims’ de-

cision had only reached the advance sheet stage by

the time our appellate briefs were filed and we

were unaware of it. In any event, it is certainly

not too late to raise the point. One of the purposes

of the Rehearing procedure is to permit parties to

call to the \Court’s attention recent developments in

the law which were not considered in the briefs or

in the Court’s opinion, and which have a material

bearing on the proper disposition of the matter.

Unquestionably, under these circumstances, substan-

tial justice requires that this question can be con-

sidered by the Court. To refuse would merely

‘ add one more technical justification for an uncon-

scionable tax result which may well cause the fi-

nancial ruin of this appellant. (Pet. oe. E, pp.

92-98. )

,

pitilddatinhctiatmencbo ye tatalehat Pisin Savin noel ~ "i

SE.

It is submitted that in principle, this situation is anal-

ogous to one where an authority relied upon by a court

in reaching its decision has been reversed and the re-

versal is called to the court’s attention by a petition for

rehearing. In such case, the decision relying on the

reversed atithority is erroneous and should be vacated

on rehearing, or at least modified and placed on some

other legitimate ground. See, Brenna, et al. v. Federal

Cartridge Corporation, 183 F. 2d 414 (8th Cir. 1950).

As we stated above, this is one of the purposes for the

rehearing procedure. So long as the petition for rehear-

ing is itself timely (as it was here), the court’s decision

is not yet final. If it is wrong, it should be cor-

rected.

The authorities relied upon by respondent to justify

the Ninth Circuit’s refusal to consider American Potash

on rehearing are plainly distinguishable and inapplicable.

In Stephens v. Arrow Lumber Co., 354 F. 2d 732 (9th

Cir. 1966), an appellant attempted to raise for the first

time on appeal a new and inconsistent claim which

could have been presented to the trial court. Similarly,

in Mitchell v. Greenough, 100 F. 2d 1006 (9th Cir,

1939), the losing party on appeal attempted on petition

for rehearing to rely on a three-year statute of limita-

tions rather than the two-year statute which had been

held applicable by the court. The critical difference in

both of these cases is that the party attempting to raise

the new and different issue was not relying on any new

cases or developments in the law having an undeniable

and material impact on the issues before the court, as is

true here. Indeed, in the Mitchell case the court ex-

pressly pointed out as an alternative ground for deny-

ing the petition for rehearing that the different statute

aaiine

of limitations urged by the petitioner - hich had been

in existence all the time) would not have changed the

court’s ultimate decision on the merits.

In the instant case, petitioner did: not attempt to

“shift” to an inconsistent or totally new and different

position which would require the court to reconsider

the case in toto. The essential issue in the case was

whether the Commissioner of Internal Revenue im-

properly denied petitioner a stepped-up basis. However,

everyone, including the parties and the courts, were

a ‘ under the impression that a stepped-up basis in a

Kimbell-Diamond transaction could only be allowed

‘ through technical compliance with section 334(b)(2).

i The Tax Court, in fact, expressly discussed the Kimbell-

Diamond doctrine and suggested that the technical re-

| quirements in section 334(b)(2), as the statutory em-

bodiment of that doctrine, were “an attempt to limit

if the availability of the stepped-up basis.” (Pet. App. B,

1 pp. 65-66.) Of course, petitioner contended, and still

contends, that those technical requirements were com-

plied with. The point is, petitioner was not changing

its position or raising a totally unrelated new issue

when it discovered the American Potash decision and

urged it to the Ninth Circuit. Petitioner was simply.

pointing out that under a newly..discovered recent inter-

pretation of the law the Tax Court’s belief that techni-

cal compliance with section 334(b)(2) was the exclu-

sive method of obtaining a stepped-up basis was no

longer correct and should not have been affirmed.

Respondent argues that a holding that the Kimbell-

Diamond doctrine is still viable would not finally dis-

pose of the case and that a new trial would bé necessary.

Such contention has no merit for two reasons: First,

the court’s proper function is not to dispose of cases as

a ae

°

quickly as they can be decided, regardless of whether

justice is served. Where the court has decided a case on

erroneous groundsgit should not be permitted fo stand

on that decision for the sake of mere expedience, If

justice requires a rehearing, or even a remand to the

trial court for further proceedings, it is the court’s duty -

to take such action.

Secondly, a complete new trial certainly would not be

necessary here. Indeed, we submit that no further evi-

dence at all is needed and the most that could be re-

quired of the Tax Court would be to make a finding as

to whether or not petitioner purchased the stock of the

three corporations in question for the purpose of

acquiring their assets. Actually, we believe the find-

ings already made by the Tax Court conclusively es-

tablish” such ‘intent by necessary implication. In any’

event, the indisputable facts that the price was based

primarily on appraisals of the assets, and the corpora-

tions were liquidated immediately, pfovide ample’ basis

for the appellate court to assume that the necessary in-

tent would have been found by the Tax Court on re-

mand.* - 7

*This situation should be contrasted with American Potash

where the facts did not indicate so clearly the existence of the

subjective intent to acquire assets. (The subsidiary corporation was

operated for a period of seven months before liquidation.) For

that reason, the case had to be remanded for further proceedings.

We wish to point out also that respondent missed the point in

arguing that because of the remand in American Potash, there

is “no final’ 1954 decision permitting a corporate taxpayer like

petitioner’ to step up its basis in the assets ofya liquidated sub-

sidiary where it has failed to comply with the conditions pre-

scribed in section 334(b)(2).” The real significance of the

American Potash case:does not depend on whether or not the

taxpayer ultimately prevails on the facts. The point is that it

does represent an appellate level final decision that the Kimbell-

Diamond doctrine is viable and can be applied independently of

section 334(b) (2).

‘

oy; ee

II.

The Petition Presents Important Questions Con-

cerning Mutliple Stock Attribution and the In-

terrelationship of Sections 318 and 334(b)(2),

Which Were Not Disposed of by the 1964

Amendment to Section 318.

Respondent suggests that no proper question for re-

view by this Court is raised with respect to multiple.

stock attribution because petitioner concedes that this

- is a case of first impression on that subject, and because

“the result reached below” is no longer possible in view

of the 1964 amendment to section 318. In so arguing,

respondent has grossly over-simplified the questions

which the petition presents.

To begin with, it is certainly no bar to certiorari

that the matter raised is one 6f first impression. Under

Rule 19(b) Of the rules of this Court, important ques-

tions of federal law may be settled by this Court even

though there is no conflict in the decisions of the

lower courts.

As for the 1964 amendment to section 318, it is true

that the extreme and extraordinary result reached. be-

. low is no longer possible (leaving petitioner,as the orily

known taxpayer to suffer from Congress’ original mis-

take). But the amendment only eliminated multiple re-

attribution of the same stock, from a partner to his

partnership and out to another partner (in this case

it was even reattributed to a second separate partner-

ship in which the actual owner of the stock had abso-

lutely no interest). The amendment in no way affects

the result of this case insofar as it holds that a purchase

intended to comply with section 334(b)(2) can be dis-

ae | ee

qualified as a non-arm’s length acquisition under section

334(b)(3)(C), solely by virtue of constructive owner-

- ship—worse yet, constructive ownership created by com-

bining stock attributed from diverse and unrelated

sources. (We respectfully refer the Court again to the ~

discussion of these points in the petition, at pp. 23-26.)

It is our contention that the clear intent of Congress

in adopting section 334(b)(3)(C), with its referen¢e to

section 318, was to deny the important benefits of

section 334(b)(2) to corporations which buy the.stock

of another corporation from their own controlling stock- wn ae “er

holder. In order to be a “person the ownership of whose

stock would, under section 318(a), be attributed, to the

person acquiring such stock,” as used in section 334(b)

(3)(C), the seller must own 50% or more of the ac-

quiring corporation, thereby activating the rule of share-.

holder-corporate attribution. But did Congress also \in-

tend that such fatal 50% ownership of the acquiring

corporation could itself be created constructively in the

seller by applying other attribution rules, such as part-

nership attribution from a partnership having no busi- 4

ness connection with the, acquiring or acquired corpora-

tions? We strongly urged that the artificial control Sus

created for the seller—particularly where actual con-

trol is shown not to exist—cannot be justified as a

basis for applying section 334(b)(3)/C), in light of

the objectives of the statute. Yet, that result is still

possible, and indeed is required, under the construction

of the statutes adopted by the courts below.

“Respondent does not offer any reasons why such re-

sult is either just or consistent with Congressional ob-

jectives. We submit there are none. It is no answer to

this argument to simply say, as respondent does, that

nee fae

_

Congress meant what it said, or to counter that peti-

tioner “cites no authority for its assertion.” (Br. Resp.

Opp. p. 11.) Surely, the courts can determine’ Con-

gressional intent and the underlying objective of the

statutes in question by applying logic and common sense.

They should be construed in accordance with that in-

tent and objective.

The final point we wish to make on this question is

that respondent is totally in error when it states, in

footnote 5.of its brief, on page 11, that throughout

these proceedings the Jeromes as individuals and the

Jerome Brothers Partnership have been treated as inter-

changeable, and that at no time did petitioner question

such treatment. Respondent offers this statement in

answer to the point raised in the petition that the

courts below tailed to distinguish the 1962 Veronica

stock purchase, which was from the three brothers as

individuals, from the 1961 transaction wherein the stock

was purchased from the Jerome Brothers Partnership.

The significance of this is that in no event should the

Veronica transaction have resulted in the loss of a

stepped-up basis, because ownership interests of sep-

arate sellers—even brothers—cannot be combined for

purposes of applying sections 318 and 334(b)(3)(C).

Contrary to respondent’s contention that this point

was never fade below, we quote the following para-

graph. from our opening Brief for. Appellant to the

Court of Appeals (at’p. 53, n. 15):

“With respect to the 1962 transaction, another

fiction was also employed. The Veronica stock was

acquired from the Jeromes as individuals and.could

not be attributed to appellant except in a -round-

about fashion through attribution to the Jerome

—13—

Brothers partnership™’This is because no individual

Jerome had as much as 50% of appellant’s stock

and their separate ownership could not be combined

for Section 318 purposes. Stevens Pass, Inc.,

supra, at 539, n. 5 (dictum).”®

At all times, in 'stating-the facts to both lower courts, —

petitioner was careful to point out this difference iff ee

ownership between the 1961 and 1962 transactions.

(See, also, p. 13 and p. 14, n. 4 of petitioner’s open-

ing brief to the Court of Appeals.) The Tax Court it-

self, in its findings of fact, correctly stated that the

stock was owned by and acquired from the Jerome

brothers as individuals. (Pet. App. B. pp. 47-50.) The

Court of Appeals also observed the distinction in stat-

ing the facts. (Pet. App. A. p. 6.) Never, at any time,

did either of the low er courts ever state directly or in-

directly that the (three Jeromes and their partnership

were interchangeable for tax purposes, or that their

separateness should be disregarded in any way. The

courts simply failed to consider the significance of stich

separate status when they reached their legat conclu-

sions.

i

ITT.

The Question of Partnership Termination for Pur-

poses of Applying the Stock Attribution Rules

Raises Appropriate, Grounds for Certiorari.

Petitioner contends that the holding of the lower

courts concerning the viability of Manchester partner-

ship raised two appropriate grounds for review ’by

» this Court. First, there is the important question not

yet decided by this Court as to when a partnership

548 T.C. 532 (1967).

ae) ae \

ceases to exist as such for tax purposes, and particu-

larly for section 318 purposes. Secondly, the decision of

the Court of Appeals is in conflict with other appellate

decisions cited in the Petition.

Respondent argues that the lower courts were cor-

rect in holding that Manchester remained in “existence

past December of 1962, since “none of its partners had

withdrawn, its affairs had not yet been wound up and

it had not been dissolved under applicable California

law.” (Br. Resp. Opp. p. 11.) Respondent is merely

compounding the errors made by the lower courts .with

respect to California law. The March 1, 1961 sab of

Manchester’s entire business asserts and cessation .of

business definitely was a dissolution under Califortha

law for the unanswered reasons which are stated in the

petition. Furthermore, the Court of Appeals did nod

really dispute that there was a dissolution; the disagree-

ment with petitioner’s position involved the effect of °

a dissolution on the agency relationship between part-

ners and partnership, and the relevance of such rela-

tionship to stock attribution through a partnership

under section 318. (See, Pet. pp. 20-23.)

Respondent contends that Manchester’s existence or

non-existence should be determined by reference to sec-

tion 7701(a) of the Internal Revenue Code, rather than

section 708. Section 7701 merely provides the definition

of a partnership and offers little help as to when a

partnership terminates. For that reason, we looked to.

section 708 for guidance, and we submit that respond-

a

=

ent, has totally failed to meet our arguments. (See Pet.

pp. 17-20.) But even the language of section 7701(a)

supports pétitioner’s position, since the definition of a

partnership plainly requires that a business be carried

on.. Here, all business activity ceased after the sale of

Manchester’s assets. The only activity of any kind was

the collection of the sale price of the assets, which

surely does not fall within the language of section 7701.

(Pet. App. B. pp. 43-45.)

. Respondent attempts to brush aside the conflict in

principle between the instant case and three other ap-

pellate decisions (including two from, other circuits) Orr

the apparent ground that they didnot specifically

involve a partnership termination for section 318 pur-

poses The corfflict in rationale is no less significant

because section 318 was not involved in those cases. If

a partnership terminates for other tax purposes on the

sale of all its assets, as in those casés, on what basis

can it be said to remain in existence for section 318

purposes?

In closing, we wish to point out again that neither

the lower courts nor respondent have ever offered a sin-

gle reason why the objectives of section 318 justify

an interpretation which makes a partnership remain vi-

able for stock attribution purposes in a subsequent un-

related transaction after it has sold all of its assets and

ceased all business, has dissolved under state law ter-

minating the agency relationship between partners as

*

sells

to new matters, and has no existence for any purpose

except to “wind up its affairs” by collecting the sale

price:

Conclusion.

For the reasons stated herein and- in the petition, it

is submitted that -a writ of certiorari should be granted.

Respectfully submitted,

CARL A. STUTSMAN, JR.,

Jack R.. WHITE,

HI, FARRER & BurRRILL,

GLENN M. ALPERSTEIN,

GILLIn & Scott,

Attorneys for Petitioner.

4