# Reply Brief of the Petitioner — C. D. Construction Corp. v. Commissioner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0457%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief of the Petitioner - **Published:** January 1, 1972 - **Citation:** 405 U.S. 988 ## Text . ; IN THE Supreme “Court of (he United States Supreme Court, US. ORS . KILLED October Perm, 197] G prt? SEAVER, CLE ( * 1). ( ‘ONSERI ( TION ¢ OrpPpop NVION, | ” ete ee . Pentioner, Vs. COMMISMONER OF-EN TERNAL REVENUE, oar ; Respondent. ‘ ns e sa 3 . On Petition for a Writ of Certiorari to the United States: Court of Appeals for the Fourth Circuit. PETTETONER’S REPLY ‘TO RESPONDENTS BRIEF, GEORGE T. ALTMAN, ~ 424 South Beverly Drive. . Beverly Hills, Calif. 90212, . Sees % Attorney for Petitioner. Of C ‘ounsel:. STANLEY H. Wit EN, 326 St. Paul Phace, | Baltimore, Md. 21202. 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Be g , : . é 7 4 is ‘ . ‘ oe ee q 7 : HE ERS ah Ne : | ; ‘ eae . . ¢ . 3 “Se A . = } S e > - 4." . 7” : ‘ . air . i Z - . 7 ‘ ud 7 ; ate ; ie ‘ ‘ SUBJECT INDEX es Be Page | | Respondent’s Statement De east ner wera | _.,.Respondent’s Argument... a Pen are cesaiseseden Pond state rail 3° | “Conclusion: lot Se EO AY Oe Hey oe ERO Ne sare ee 4 TABLE. OF AU THORITIES CITED Cases . ee "First Security. ion Docket No. 70-305 2... 3 Maple v. Commissioner, 440 F.2d 1055 (C: fae ney _. Stern v. Pn aa i i EA, ae ec Oe 4, ~ “Charles Town, Inc., 25 TCM. 77, aff'd, 372° F.2d. Bia ere SEEN OG Ral CERN SRO LORE Po 3 se . ‘Stites ~ , ; Internal .Revenue Code. “Sec. ca Sa tae aca Seed Bete 2,3 : Internal Revenue’ Code, Ste: 621340) ° 2 2 | ; j IN THE. Supreme Court of the United States October Term,- 1971 No. 71-852 C. DP. CONSTRUCTION CORPORATION, ; Petitioner, -« vs. COMMISSIONER OF INTERNAL REVENUE, : Respondent. ’ "On Petition for » Writ of Cértiorari to the United Siates Court af Appeals for the Fourth Circuit. PETITIONER’S REPLY TO RESPONDENT'S BRIEF. " Respondent's Statement. | Respondent's bricf is but a desperate attempt to -cf- face the clear conflicts shown by the. petition by speak- ing from a record which does not exist. ‘His carefully studied and repeated misstatements of the findings Con- - stitute in fact an admission that he is unable truthfully to oppose the petition. - Thus, on page 3, he refers to the gontractual in- terest of Fairmount in each of the two racmg meets as “90 percent of Charles Town's profits from the meets” (Italics supplied.) The court below. however: spetified —thatcinterest as “980 percent of the profits not ¢ harle x Town's protits| trem the meets, “(Pet App. 2.) Bho coptrag! SH morcever, being a wholly sep arate contract um the case of cach meet, speciicd that Interest as “ninety percent C90) of the profits of the sid Teel” UPet App. bo) Vhus it is clear Mat Bair MOUNTS Interest was, one. net in “Charles Town's protits’. but im the profits of the nicet ttisell, the par ticular meet. im cach case : Again, on the same pare, respondent says that the deternunation. ef the Commissioner, ine his deficienéy Note, that the entire amount of the profits was taxable t Charles Pown under “sections 61 and. 482" of the Internal Revere Code. was sustained ins the’ Charles. Fown, Inc. case, 28 T-C.M. 77. affirmed, 372) F.2d 415. This is Just untrue: the pages which -respondent cites do not show this at all. The decision of-cach court below sustatmmng the deficiency against Charles: Town sustained it solely and only under Section 482. (Pet. App. re , Asuin, on pagt 4. respondent makes the same error, even more Muntl. when he savs that the “Tax Court held that the Commissioner's assessment against Charles ‘Town 2°. rested on Section 61. as well as on Section 482." (Italics supplied.) He points to no page for. this, and there is nothing in the record. nothing whatever, to show any assessment. or any authority of the Commis- sioner to assess.’ prior to the determination of the Tax Court. and that rested solely on Section 482. Simjlat and even worse deviations from the record at rppear in Seapomee snt's Argnment. as shown below. ® ae ? . ; . e "The authority of -the- Commissioner to assess is governed by - Section 6212 (2) of the Internal Revenue Code. : - ~~. cane — ° . Respondent's Argument. Respondent makes no. reference to the Furst Security Bank case, Docket No, 70-305 new pending in this’ Court. As of this writing, that case is stil pending here. We merely renew the reference to it made in our petition | and again urge that a revicw 6f our case would be helpial in arriving at a conclusion there. We reply now to the points made by respondent. I. Respondent's argument begins, at page 5, with a clear non sequitur, Wtoassumes that since what Fair- mount made under cach contract was an equity invest- ment in a raciig meet to be carricd out by Charles Tewn, that it necessarily was an investment in Charles Town's business. Un Maple v. Commissioner, 440 F.2d 1055 (C.A. 9) there was the same thing, an equity in- estment by one person in ah operation carricd out by gnother, -with the investing person taking all the risk. ‘In that event, the Ninth Circuit there held. the opera- tion in which the equity investment is made is the investing . person's business, here Fairmount’s, not Charles Town's. Thus the holding here by the Court be-_ low that Fairmount’s equity investment was an invest- ment in Charles Town's business -is in conflict with the decision of the Ninth Circuit in the Maple case, supra. 2. Respondent aext says, page 6, in reference to the clear conflicts pointed out in the petition with certain - Cases, arising under Section 482. that “both Courts be- low found that Charles Town’s tax, liability rested also on Section 61,” He cites no page in the record for this and cannot: it4s just not there. This is plain admission that the conflicts referred: to are clear and are im- portant. poe Wee 3. In order to show ‘that there is no conflict with Stern v. Commissioner, 357 U.S. 39, respondent asserts; at page 6, that both Courts below appficd local law in | ~ determining that Fairmount was liable as Charles Town's transferee. Of course, both Courts agreed that local law was controlling,” but there is hothing whatever to show that cither Court actually applicd it. On this. we refer to our petition, pages 8-10: As there shown, the decision below is clearly in conflict with the local law. It follows thatit is in conflict with this Court's decision in Stern vo C ommissione r, supra. - . Conclusion. We subnut again; in.conclusion, that this case pre- sents clear conflicts-with decisions of this Court and decisions of other Courts of Appeal, and should therefore be reviewed. The presence of these conflicts is emphasized by respondent's desperate and bald at- tempt to blot them out by ; plain misstatements of the record. GeorGE T. ALTMAN, | Attorney for Petitioner.” Of Counsel: STANLEY H. WILEN. — > “a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0457%3A3. Public record. Not legal advice.