Petition for Writ of Certiorari — Bishop v. United States

Supreme Court brief1972

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a JUL 22 1972

MICHAEL RODAK, JR.,CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM 1972

No. 72122

WASSER BISHOP, as Executrix of the

Estate of David H. Bishop, Deceased,

Petitioner

versus

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LOMAX B. LAMB, JR.

Marks, Mississippi 38646

(601-326-6141)

Attorney for Petitioner

INDEX

Page

Opinions Below 2

Jurisdiction 3

Questions Presented 3

Constitutional Provisions and

Statutes Involved 6

United States Constitution,

Fifth Amendment 6

United States Code

26 U.S.C. §2056 (d) and (e)

26 U.S.C. $6501 (a) and (e)

28 U.S.C. $1254 (1)

28 U.S.C. 81346 1

Rule 56, Federal Rules of

Civil Procedure 11

Rule 18, Local Rules of the

United States Court of

Appeals for the Fifth

oot oO

Circuit 13

Mississippi Code of 1942:

§672-71--672-81 14

Statement 17

Death of Mrs. Bishop 18

I. R. S. Fully Reviewed Gift Tax

Liability in 1963 20

I. R. S. Rejected Additional

Assessments in 1964 21

I. R. S. Reversed Itself in 1966 22

VES

Executrix Paid 1966 Assessments 2°

Reasons for Granting the Writ 23

II.

III.

Ownership of securities

registered in the names of

Dr. and Mrs. Bishop at the

time of Mrs. Bishop's death

is a disputed question of

fact. The District Court

erred in not allowing a jury

to make a determination with

respect to ownership. 23

The Internal Revenue Service

with full knowledge of all

material facts made a

determination within three

years after Dr. Bishop's 1961

and 1962 gift tax returns

were filed that no gift tax

liability was incurred in

connection with his disclaimer

of securities owned by his

wife. The District Court

erred in not granting Vasser

Bishop's motion for summary

judgment. 29

This court should grant

certiorari to settle the

question of whether disposi-

tion of this case by the

District Court without trial

and by the lower court on its

summary calendar and without

oral argument or written

opinion constitutes a

iii

violation of due process of

law, as guaranteed by the

Fifth Amendment.

Conclusion

Appendix

Opinion of District Court

for Northern District of

Mississippi dated July l,

1970

Final Judgment of the

District Court dated

May 27, 1971

Opinion of the Court of

Appeals for the Fifth

Circuit dated March 7, 1972

Judgment of the Court of

Appeals for the Fifth

Circuit dated March 7, 1972

Judgment of the Court of

Appeals for the Fifth

Circuit filed March 13, 1972

Judgment of the Covrt of

Appeals for the Fifth

Circuit dated April 26, 1972,

denying Petition for

Rehearing

Certificate of Service

Cases Cited

Adickes v. Kress & Cco., 398 U.S. 144,

26 Le Ed. 2d 142, 90 S. Ct. 1598

(1970)

Bird v. Stein, (S.D. Miss., 1952) 102

F. Supp. 399, rev'd on another

point (C. A. 5, 1953) 204 F. 2d

122, reh. den. (1953) 205 F. 2d

512

Bradley v. State of New Hampshire

(S. Ct. N. H., 1956) 123 A. 2d

148

F.C.C. ve WIR, 337 U.S. 265, 275, 69

S. Ct. 1097, 93 L. Ed. 1353

(1949)

Harrell v. Harrell, 231 So. 2d 793

(Miss. 1970)

Isbell Enterprises, Inc. v. Citizens

Casualty Co., et al., (CCA 5,

1970) 431 F. 2d 409

Keyes v. Keyes, 252 Miss. 138, 171 So.

2d 489 (Miss. 1965)

O'Connor v. Dickerson, 188 So. 2d 241

(Miss. 1966)

Petersen v. Petersen, 238 Miss. 190,

118 So. 2d 300 (Miss. 1960)

Robertson v. United States, (D.C.

Ala. 1968) 281 F. Supp. 955

SEC v. Texas Gulf Sulphur Co., (CCA

2, 1971) 446 F. 2d 1301

United States v. Diebold, 369 U.S.

654, 8 L. Ed. 2d 176, 82 S. Ct.

993 (1962)

United States Constitution Cited

Fifth Amendment

Statutes Cited

26 United States Code (Internal

Revenue Code of 1954)

§2056 (d)

§6501 (a)

28 United States Code

§1254 (1)

$1346 (a)(1)

Court Rules Cited

Rule 56, Federal Rules of Civil

Procedure

Rule 18, Local Rules of the United

States Court of Appeals for

the Fifth Circuit

Mississippi Code of 1942

§672-71 through 672-81

CCRPV PRINTED CLOSE TO EDCE

31, 7

23,30

Other Authorities Cited

6 Moore, Federal Practice (2d ed.

1966) $56.13(3)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No.

VASSER BISHOP, as Executrix of

the Estate of David H. Bishop,

Deceased, Petitioner

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Vasser Bishop, petitioner, prays

that a writ of certiorari issue to review

the judgment herein of the United States

Court of Appeals for the Fifth Circuit

entered in the above-entitled case on

March 7, 1972, petition for rehearing

denied on April 26, 1972,

OPINIONS BELOW

The opinion of the District Court for

the Northern District of Mississippi

(R. 316) is reported at 26 AFTR 2d

70-5970. A copy of the opinion is

appended to this petition as Appendix "A,"

Final judgment was entered by the

District Court on May 27, 1971. (R. 421)

(Appendix "B")

On March 7, 1972, the Court of

Appeals for the Fifth Circuit affirmed

per curiam the judgment of the District

court. (Appendix "C")

Judgment was also entered by the

Circuit Court of Appeals on March 7,

1972. (Appendix "D")

In an order filed March 13, 1972,

the Circuit Court of Appealsfor the Fifth

Circuit denied petitioner's motion to

remove the case from the summary calendar

and to permit oral argument. (Appendix

wen )

On April 26, 1972, the Court of

Appeals for the Fifth Circuit per curiam

denied appellant's petition for rehearing

and for rehearing en banc. (Appendix

we )

JURISDICTION

The judgment of the United States

Court of Appeals was entered on March 7»

1972, and petition for rehearing denied

on April 26, 1972.

Jurisdiction of this Court is invoked

under 28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. Whether a District Court erred

in granting summary judgment against

plaintiff who sought the recovery under

28 U.S.C. §$1346(a)(1) of gift taxes

claimed to have been erroneously collected

for the years 1961 and 1962 where there

were these genuine issues of material

fact:

a. Plaintiff asserts that

certain valuable securities dis-

claimed by David H. Bishop subse-

quent to the death of his wife were

securities owned by his wife at the

time of her death, were never his

property, and that consequently he

incurred no gift tax obligation in

executing the disclaimers.

De TRIE NT st

The United States rejects

plaintiff's position and asserts the

securities were not in fact the

property of Mrs. Bishop but rather

were securities held by husband and

wife as joint tenants which, upon

the death of Mrs. Bishop, became

wholly the property of her surviving

husband.

b. Plaintiff asserts that

because the Internal Revenue Service

had full knowledge within the three-

year limiting period of the trans-

actions on which the gift tax assess-

ments for 1961 and 1962 were based,

assessment in 1966 of additional

gift taxes for 1961 and 1962 was

barred by the three-year statute of

limitations. 26 U.S.C. §6501 (a).

The United States denies such

knowledge on the part of the

Internal Revenue Service as would

invoke the three-year limiting

period.

The court below affirmed the summary

judgment and plaintiff was prevented from

going to trial on these issues,

2. Whether the lower court erred in

placing plaintiff's appeal on its summary

calendar, in denying plaintiff an oppor-

tunity of oral argument, and in affirming

the District Court without opinion, thus

aes”

leaving uncorrected erroneous findings

of fact and conclusions of law which

plaintiff has pointed out appear in the

District Court opinion.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

United States Constitution:

Fifth Amendment:

No person shall be held to

answer for a capital, or otherwise

infamous crime, unless on a present-

ment or indictment of a Grand Jury,

except in cases arising in the land

or naval forces, or in the Militia,

when in actual service in time of

War or public danger; nor shall any

person be subject for the same

offence to be twice put in jeopardy

of life or limb; nor shall be conm-

pelled in any Criminal Case to be a

witness against himself, nor be

deprived of life, liberty, or prop-

erty, without due process of law;

nor shall private property be taken

for public use, without just com-

pensation.

REFERED ch ANON. SAIS RISE SALE GE BOE AE PROS PATER EID

SERRA CAA aA

United States Code:

26 United States Code (Internal Revenue

Code of 1954)

62056. Bequests, etc., To Surviving

Spouse, e e

iain iat AA SRL ETRY AIRE

(d) DISCLAIMERS. --

Gp Sahay ay DR Seite

Prva

(1) BY SURVIVING SPOUSE.--If

under this section an interest would,

in the absence of a disclaimer by

the surviving spouse, be considered

as passing from the decedent to such

spouse, and if a disclaimer of such

interest is made by such spouse,

then such interest shall, for the

purposes of this section, be con-

sidered as passing to the person or

persons entitled to receive such

interest as a result of the dis-

claimer. ..

(e) DEFINITION.--For purposes of

this section, an interest in property

shall be considered as passing from the

decedent to any person if and only if--

(1) such interest is bequeathed

or devised to such person by the

decedent; . « e«

(4) such interest has been

transferred to such person by the

decedent at any time;

(5) such interest was, at the

time of the decedent's death, held

by such person and the decedent (or

by them and any other person) in

joint ownership with right of survi-

vorship;

(6) the decedent had a power

(either alone or in conjunction with

any person) to appoint such interest

and if he appoints or has appointed

Se it Ras =

‘Spe cob te a

such interest to such person, or if

Such person takes such interest in

default on the release or nonexer-

cise of such power; ...

* *

§6501. Limitations on Assessment and

Collection.

(a) GENERAL RULE.--Except as other-

wise provided in this section, the amount

of any tax imposed by this title shall be

assessed within 3 years after the return

was filed (whether or not such return was

filed on or after the date prescribed)

or, if the tax is payable by stamp, at

any time after such tax became due and

before the expiration of 3 years after

the date on which any part of such tax

was paid, and no proceeding in court

without assessment for the collection of

such tax shall be begun after the expira-

tion of such period...

(e) SUBSTANTIAL OMISSION OF ITEMS.--

Except as otherwise provided in sub-

section (c)--. ..

(2) ESTATE AND GIFT TAXES,--

In the case of a return of estate

tax under chapter 11 or a return of

gift tax under chapter 12, if the

taxpayer omits from the gross estate

or from the total amount of the gifts

made during the year items includi-

ble in such gross estate or such

total gifts, as the case may be, as

MAS

exceed in amount 25 percent of the

gross estate stated in the return or

the total amount of gifts stated in

the return, the tax may be assessed,

or a proceeding in court for the

collection of such tax may be begun

without assessment, at any time

within 6 years after the return was

filed. In determining the items

omitted from the gross estate or the

total gifts, there shall not be

taken into account any item which is

omitted from the gross estate or

from the total gifts stated in the

return if such item is disclosed in

the return, or in a statement

attached to the return, in a manner

adequate to apprise the Secretary or

his delegate of the nature and

amount of such item.

28 United States Code

§1254. Courts of appeals; certiorari;

appeal; certified questions.

Cases in the courts of appeals may

be reviewed by the Supreme Court by the

following methods:

(1) By writ of certiorari

granted upon the petition of any

party to any civil or criminal

case, before or after rendition

of judgment or decree; .. .-

%& %& &

§1346. United States as defendant.

(a) The district courts shall have

original jurisdiction, concurrent with

the Court of Claims, of:

(1) Any civil action against

the United States for the recovery

of any internal-revenue tax alleged

to have been erroneously or il-

lec1:lly assessed or collected, or

ary penalty claimed to have been

collected without authority or any

Sum alleged to have been excessive

or in any manner wrongfully col-

lected under the internal-revenue

lewSs « « «

SG NERO P AMT RE LOST LINE IEE LOOM A 8 ESE IE EE

Federal Rules of Civil Procedure

1 Rule 56. Summary Judgment.

2 (a) For Cuiarmmant. A party seeking to recover upon a

3 claim, counterclaim, or cross-claim or to obtain a declara-

4 tory judgment may, at any time after the expiration of 20

5 days from the commencement of the action or after service

6 of a motion for summary judgment by the adverse party,

7 move with or without supporting affidavits for a summary

8 judgment in his favor upon all or any part thereof.

9 (b) For Derenpina Party. A party against whom a

10 claim, counterclaim, or cross-claim is asserted or a declara-

11 tory judgment is sought may, at any time, move with or

12 without supporting affidavits for a summary judgment in

13 his favor as to all or any part thereof.

14 (c) Motion anv Procrepincs Tuerzoyn. The motion

15 shall be served at least 10 days before the time fixed for the

16 hearing. The adverse party prior to the day of hearing

17 may serve opposing affidavits. The judgment sought shal]

18 be rendered forthwith if the pleadings, depositions, an-

19 swers to interrogatories, and admissions on file, together

20 with the affidavits, if any, show that there is no genuine

21 issue as to any material fact and that the moving party is

22 entitled to a judgment as a matter of law. A summary

23 judgment, interlocutory in character, may be rendered on

24 the issue of liability alone although there is a genuine issue

25 as to the amount of damages. ,

26 (d) Case Nor Fuuty Apsupicatep on Morton. If on

27 motion under this rule judgment is not rendered upon the

28 whole case or for all the relief asked and a trial is neces-

29 sary, the court at the hearing of the motion, by examining

30 the pleadings and the evidence before it and by interrogat-

31 ing counsel, shall if practicable ascertain what material

32 facts exist without substantial controversy and what ma-

33 terial facts are netually and in good faith controverted. It

34 shall thereupon make an order specifying the facts that

35 appear without substantial controversy, including the ex-

36 tent to which the amount of damages or other relief is not

37 in controversy, and directing such further proceedings in

58 the action as are just. Upon the trial of the action the facts

39 so specified shall be deemed established, and the trial shall

40 be conducted accordingly.

41 (e) Form or Arrmavits; FurtHer Testimony; Derense

42 Requmep. Supporting and opposing affidavits shall be

43 made on personal knowledge, shall set forth such facts as

44 would be admissible in evidence, and shall show affirma-

45 tively that the affiant is competent to testify to the matters

46 stated therein. Sworn or certified copies of all papers or

47 parts thereof referred to in an affidavit shall be attached

48 thereto or served therewith. The court may permit affida-

49 vits to be supplemented or opposed by depositions, an-

50 swers to interrogatories, or further affidavits. When a

51 motion for summary judgment is made and supported as

52 provided in this rule, an adverse party may not rest upon

53 the mere allegations or denials of his pleading, but his

54 response, by affidavits or as otherwise provided in this

55 rule, must set forth specific facts showing that there is a

56 genuine issue for trial. If he does not so respond, sum-

57 mary judgment, if appropriate, shall be entered against

58 him. .

59 (f) Wen Arrmavrrs Art Unavarasie. Should it ap-

60 pear from the affidavits of a party opposing the motion

61 that he cannot for reasons stated present by affidavit facts

62 essential to justify his opposition, the court may refuse

63 the application for judgment or may order a continuance

64 to permit affidavits to be obtained or depositions to be

65 taken or discovery to be had or may make such other order

66 as is just.

67 (g) Arrmavirs Mave x Bap Farr. Should it appear

68 to the satisfaction of the court at any time that any of the

69 affidavits presented pursuant to this rule are presented in

70 bad faith or solely for the purpose of delay, the court shall

71 forthwith order the party employing them to pay to the

72 other party the amount of the reasonable expenses which

73 the filing of the affidavits caused him to incur, including

74 reasonable attorney’s fees, and any offending party or

75 attorney may be adjudged guilty of contempt.

the

Local Rules of the United States Court of

Appeals for the Fifth Circuit

Rule 18. Summary Calendar

(a) Whenever the court, sua sponte

or on suggestion of a party, concludes

that a case is of such character as not

to justify oral argument, the case may be

placed on the summary calendar.

(b) A separate summary calendar

will be maintained for those cases to be

considered without oral argument. Cases

will be placed on the summary calendar

by the clerk, pursuant to directions from

the court.

to the parties or their counsel of the

transfer of the case to the summary

calendar.

POOR COPY

Ress Sd

Sani SH ted ci sits: Pete ee

BERS ALERT 4

Cam

Mississippi Code of 1942

CHAPTER 5

POWERS

Sections

672-71. Release of powers of appointment—title of act.

672-72. Definitions.

72-73. Right of relcase.

72-74. Manner of effecting release.

672-75. Release heretofore made.

672-76. Right of release not exclusive.

672-77. Delivery of release or copy to person in possession or control of property.

672-78. Recordation, etc., as notice to purchaser or mortgagee of property.

672-79. Recordation in deed book; indexing, fee.

672-80. Release not invalid for failure to comply with sections 672-77 and 672-78,

672-81. Conflicting provisions.

§ 672-71. Release of powers of appointment—title of act.

This act be cited as the “Release of Power of Appointment Act.”

SOURCES: Laws, 1946, ch. 405, § 1.

REFERENCES: 41 Am Jur 874, Powers §§95 et seq.

Annotations

Release of power of appointment of property. 76 ALR 1430.

§ 672-72. Definitions.

When used in this act unless the context otherwise requires:

(a) “Power” includes any power to appoint or designate to whom

property shall go, any power to invade property, any power to alter,

amend or revoke any instrument under which an estate or trust is held

or created or to terminate any right or interest thereunder, and any

power remaining where one or more partial releases have heretofore or

hereafter been made with respect :9 a power, whether heretofore or here-

after created or reserved, whether vested, contingent or conditional, and

whether classified in law or known as a power in gross, a power append-.

ant, a power appurtenant, a collateral power, a general, special or lim-

ited power, or exclusive or nonexclusive power, or otherwise, and irre-

spective of when, in what manner, or in whose favor, it may be exer-

cised.

(b) “Donee” means any person whether resident or non-resident of

this state, who, either alone or with another, has the right to exercise &

power.

(ce) “Objects” when used in connection with a power means the per-

son in whose favor the power may be exercised.

(d) “Property” when used in connection with a power means any and

all property, whether real or personal, any and all interest in property,

and any and all income from property, which is subject to the power,

and includes any part of the property, any part of the interest in prop-

erty, and any part of the income from property.

(e) “Release” means renunciation, relinquishment, surrender, refusal

to accept, extinguishment, and any other form of release.

SOURCES: Laws, 1946, ch. 405, § 2.

REFERENCES: 41 Am Jur 806, Powers §§2 et seq.

§ 672-73. Right to release.

Unless the instrument creating the power specifically provides to the

contrary, the donee of a power, whether now existing or hereafter

created, may;

234

COPY PRINTED CLOSE TO EDGE

Ch. 5 POWERS § 672-7

(a) At any time completely release his power.

(b) At any time or times release his power: (one) As to any propert

which is subject thereto; (two) As to any one or more of the objec

thereof; or (three) So as to limit in any other respect the extent to whic

it may be exercised.

SOURCES: Laws, 1946, cb. 405, § 3.

REFERENCES: 41 Am Jur 874, Powers §§ 95 et seq.

Annotations

‘Release of power of appointment of property. 76 ALR 1430.

§ 672-74. Manner of effecting release.

A release of a power whether partial or complete shall be valid and

effective, with or without a consideration, when the donee executes a

instrument evidencing an intent to make the release, signed and acknow

edged in the manner prescribed for the execution of deeds, and delive

the instrument or causes it to be delivered, either:

(a) To an adult person who may take any of the property which i

subject to the power in the event of its non-exercise or to one in who

favor it may be exercised after such partial release; or

(b) To any trustee or any co-trustee of the property which is subje

to the power; or

(ce) By filing the same for recordation in the chancery clerk’s offic

in the county and judicial district thereof in which any of the prope

is located or in which either the donce or the trustee in contro! of t

property resides or in wl'h the trustee has its principal office, or i

which the instrument creating the power is probated or recorded.

SOURCES: Laws, 1946, ch. 405, § 4.

REFERENCES: 41 Am Jur 876, Powers § 97.

Annotations

Release of power of appointment of property. 76 ALR 1430.

§ 672-75. Release heretofore made. i

A release of a power executed prior to the effective date of this ac

shall have the same effect as if this act had been in effect at the time thi

release was executed and delivered. i

SOURCES: Laws, 1946, ch. 405, § 5.

§ 672-76. Right of release not exclusive.

The rights and means provided for in this act for the release of 4

power are not exclusive, but are in addition to all other rights am

means of a donee to release a power in whole or in part.

SOURCES: Laws, 1946, ch. 405, § 6.

REFERENCES: 41 Am Jur 876, Powers §§ 97 et seq.

§ 672-77. Delivery of release or copy to person in possession 0

control of property.

Any fiduciary or other person, association or corporation having th

Possession or control-of any property subject to a power of appointmen

shall be deemed to have notice of a release of the power when the origins

or a copy of the release is delivered to such fiduciary or other persor

Association or corporation.

SOURCES: Laws, 1946, ch. 405, § 7.

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ae : 16 art

§ 672-78 ESTATES Title 5

§ 672-78. Recordation, etc., as notice to purchaser or mortgagee of

property.

Any purchaser or mortgagee of real property subject to a power of

appointment who is without actual notice shall be deemed to have notice

of a release of the power when the original or duplicate original is filed

for record in the chancery clerk's office in the county and judicial district

thereof in which the particular real property so purchased or mortgaged

is located, and when the deed, will or other instrument creating the

power, or a duly attested copy thereof, is recorded in the same office, and

an appropriate notation is entered on the margin of the will or deed

book where the instrument creating the power is recorded referring to

the deed book and page where the release is recorded.

SOURCES: Laws, 1946, ch. 405, § 8.

CROSS REFERENCES: Land and Conveyances §§ 867-869, 878, 881.

§ 672-79. Recordation in deed book; indexing, fee.

Clerks of chancery courts are authorized and directed to record releases

of powers of appointment in the books provided for the recordation of

deeds and to index the Same in the current and general indexes, the

name of the donee being entered on the grantor index, and to charge

therefor at the rate applicable to deeds.

SOURCES: Laws, 1946, ch. 405, § 9.

CROSS REFERENCES: Fees § 3932; Land and Conveyances §§ 878, 861.

§ 672-80. Release not invalid for failure to comply with sections

672-77 and 672-78.

No release shall be invalid or ineffective because of failure to comply

with either §7 or § 8 [§ 672-77 or § 672-78] of this act.

SOURCES: Laws, 1946, ch. 405, § 10.

§ 672-81. Conflicting provisions.

In so far es the provisions of this act may conflict with other acts or

parts thereof, the provisions of this act shall control.

SOURCES: Laws, 1946, ch. 405, § IL

AE EPI Ea hat Ry TE ER Nec .

STATEMENT

Dr. David H. Bishop and his wife

Mary H. Bishop resided for many years at

Oxford, Mississippi, where Dr. Bishop was

engaged as an English professor at the

University of Mississippi. Mrs. Bishop

died October 3, 1961, at the age of 76

years. Dr. Bishop died January 9, 1963,

at the age of 92 years. Dr. and Mrs.

Bishop were survived by three daughters:

vasser Bishop, Mary Hartwell B. Howorth,

and Martha B. Henton.

During their lifetimes Dr. and Mrs.

Bishop accumulated securities and cash in

modest quantities. In 1950 they bought a

residence--the only one they ever owned--

for $13,000. They received the property

as tenants in common. (R. 218-219)

Certain of the securities which Dr.

and Mrs. Bishop held at the time of Mrs.

Bishop's death were directly traceable

to inheritances of Mrs. Bishop from her

parents. These items were listed at

their full value in Mrs. Bishop's estate

tax return. (R. 91)

At the time of Mrs. Bishop's death,

all securities owned by Dr. and Mrs.

Bishop were registered in both their

names as joint tenants with the right of

survivorship.

Plaintiff asserts, however, that

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isc TAREE HL RD RDA SDF TABI PERE SIS NE RIE AEE

Prliot Chane A TE SUR ew

® Says dacias

despite the form of the registration, the

securities were in fact owned by Dr. and

Mrs. Bishop equally--as tenants in common,

not as joint tenants. The record sup-

ports her position.

Death of Mrs. Bishop

Shortly after Mrs. Bishop's death on

October 3, 1961, Dr. Bishop engaged

Lomax B. Lamb, Jr., an attorney, to re-

present him in legal matters involved in

the administration of Mrs. Bishop's es-

tate. The administration proceeded nor-

mally, and lists of assets were prepared.

(R. 267-268) Dr. Bishop early in his

conversations with his attorney said he

wished some of the securities which he

and his wife had owned together to go to

his daughters and grandchildren. (Re. |

176) He also indicated that he didn't

consider those assets his wife had ob-

tained from her family truly his; he

felt they should go to their daughters.

(R. 248-249)

Dr. Bishop was informed by his attor-

ney that under the Internal Revenue Code

he might disclaim any or all of his in-

heritance from his wife. As a result of

these disclaimers, Dr. Bishop directed

his attorney to prepare instruments dis-

claiming a number of shares of stock.

These shares were never registered in the

name of Dr. Bishop individually, but were

released by him and divided among the

three daughters. (R. 176, 273)

The original disclaimer was executed

on November 27, 1961, (R. 58), and listed

securities with a valuation of some

$67,137.40. (R. 189) A supplemental

disclaimer was executed on January 29,

1962, covering additional securities

yalued at some $27,182.26. (R. 72, 191)

The disclaimers recited that it was

the intention of Dr. Bishop "to comply

with the terms of $2056(d) of the Internal

Revenue Code of 1954 which is concerned

with disclaimers, and with §§672-71

through 672-81, Mississippi Code of 1942,

which provides for the release of powers

of appointment." (R. 59, 72)

Dr. Bishop also made certain gifts

of stock and cash to the First National

Bank of Memphis as Trustee for the bene-

fit of his daughters, grandchildren, and

his sons-in-law. The first gifts after

Mrs. Bishop's death were made on

November 27, 1961, and amounted to

approximately $63,000. On January 29,

1962, additional gifts were made in trust

amounting to some $27,000. (R. 61, 66)

On January 30, 1962, Dr. Bishop

filed a gift tax return for the calendar

year 1961. (R. 68) On February 26,

1963, a gift tax return for the calendar

year 1962 was filed for Dr. Bishop,

deceased, by Vasser Bishop, his execu-

trix. (R. 117)

No reference was made in either the

1961 or the 1962 gift tax returns to the

stocks which were a part of the estate of

Mrs. Mary H. Bishop and which were dealt

with in Dr. Bishop's two disclaimers.

On February 21, 1962, an estate tax

return was filed by Dr. Bishop, executor,

in connection with his wife's death.

(R. 74) On Schedule "M" of the return he

gave a full account of the written dis-

claimer and supplement executed by him

and filed in the office of the Chancery

Clerk of Lafayette County, Mississippi,

along with a complete list of all stocks

disclaimed and released to his daughters,

contingent legatees of Mrs. Bishop.

(R. 105)

I. R. S. Fully Reviewed Gift Tax

Liability in 1963

The estate tax return of Mrs. Bishop

was audited by the Internal Revenue

Service in 1963. Felix J. Underwood, Jr.,

Estate Tax Examiner for the Internal

Revenue Service, in a letter of July 1l,

1963, opened correspondence about the

examination of the return. (R. 29-30,

401)

Letters, telephone calls, personal

interviews involving Mr. Underwood for

the Internal Revenue Service and

Lomax Lamb, Jr., for the Bishop estate

followed for several months, during

which the gift tax consequences of the

securities disclaimed by Dr. Bishop were

fully explored. (R. 30, 306, 307, 403,

406)

guste

ERTL PAI NT ERI LE Oe IY PRS — |

In a letter dated December 30, 1963,

Underwood wrote Lamb saying he had sub-

mitted his report of the examination of

the estate tax return for the estate of

Mrs. Mary H. Bishop. That letter spoke

of the unresolved doubt

", . . in the examiner's mind as to

whether or not the surviving spouse,

Dr. David H. Bishop, may legally

disclaim his one-half earned inter-

est in the stocks in which he and

decedent were joint tenants with the

right of survivorship. . . However,

Dr. Bishop died in 1963 and the

examiner is going to research this

matter further and determine if his

right to disclaim or not disclaim

his interest in the jointly held

stocks will affect his estate tax

liability, or whether or not he in-

curred any gift tax liability if

the disclaiming of such jointly

held stock was legally improper."

(R. 30, 128) (Emphasis supplied.)

On January 28, 1964, Lamb spoke to

Underwood again on this subject. (R.

308, 399-400)

I. R. S. Rejected Additional Assessments

in 1964

In a letter of March 20, 1964,

J. G. Martin, Jr., District Director of

Internal Revenue, sent Vasser Bishop,

executrix, a final report letter covering

the examination of returns in the estate

ATTEN |

of Mrs. Bishop. Specific reference was

made to the disclaimers by Dr. Bishop--

and their effect on Mrs. Bishop's estate

tax liability. (R. 128a, 128d-128e)

I. R. S. Reversed Itself in 1966

On November 18, 1966, the Internal

Revenue Service assessed additional gift

taxes against the estate of David H.

Bishop on the grounds that the actions of

Dr. Bishop in 1961 and 1962 in disclaiming

stocks should have been reported as

gifts, and gift taxes paid on the

stocks disclaimed. (R. 187, 309-310)

Executrix Paid 1966 Assessments

Vasser Bishop, executrix, paid the

1966 assessments. The first count of her

complaint seeks recovery of $11,089.72,

including interest, she paid on the 1961

gift tax assessment.

PE ee eee Pee

f In her second count she seeks recov-

ery of $8,267.98 paid on the assessment

, for 1962 gift taxes.

The District Court had jurisdiction

of the action by reason of 28 U.S.C.

6§1346(a)(1).

REASONS FOR GRANTING THE WRIT

OWNERSHIP OF SECURITIES REGISTERED

IN THE NAMES OF DR. AND MRS. BISHOP

AT THE TIME OF MRS. BISHOP'S DEATH

IS A DISPUTED QUESTION OF FACT.

THE DISTRICT COURT ERRED IN NOT

ALLOWING A JURY TO MAKE A DETERMINA-

TION WITH RESPECT TO OWNERSHIP.

After the pleadings had been settled

in the District Court and the United

States had taken the depositions of

Vasser Bishop and Lomax B. Lamb, Jr.,

plaintiff filed a motion for summary

judgment under Rule 56. (R. 312) The

particular ground of the motion was that

collection of the additional gift taxes

for 1961 and 1962 was barred by the

three-year statute of limitations.

The United States responded with a

cross-motion for summary judgment. (R.

314) The motion was accompanied by no

supporting affidavits, and perforce had

to stand on the pleadings, depositions,

answers to interrogatories and admissions

on file.

The only real evidence on which the

motion of the United States could rely

was the admitted fact that on the date of

Mrs. Bishop's death the securities here

involved were registered in the name of

Mrs. Bishop and her husband as joint

tenants with right of survivorship.

But all other materials in the case

which were properly before the District

Court for its consideration supported the

position taken by plaintiff that Dr. and

Mrs. Bishop each owned the securities in

equal shares--as tenants in common rather

than as joint tenants.

--That is the meaning of the lane

guage in plaintiff's complaint when she

said the securities disclaimed were not

the property of her father. (R. 6, 8)

--That is the meaning of plaintiff's

answers to interrogatories from the

United States where she said several

times that the securities disclaimed were

securities which Mrs. Bishop inherited

from her parents, which Dr. Bishop consi-

dered to belong to his wife and declined

to accept, or securities whose ownership

was attributable to Mrs. Bishop.

(R. 26-39)

--Dr. Bishop's entirely hand-

written will dated November 8, 1958,

specifically stated that "all our

material possessions are owned in cummon

by my wife and myself, share and share

alike. . . I will that my equal share of

these at my death shall pass to the en-

tire possession of my wife. . ." (R. 53)

--The language of the disclaimers

executed by Dr. Bishop explicitly stated

that he and his wife “owned all their

interests in corporations listed below

equally." (R. 58, 72)

--And the testimony of

Lomax B. Lamb, Jr., attorney, taken by

the United States, documented plaintiff's

position that Dr. Bishop consistently

declared he and Mrs. Bishop owned their

securities in equal shares--share and

share alike. (R. 175, 271, 291)

On the basis of this record, it was

error to grant summary judgment on the

cross-motion of the United States. As

the moving party, the United States had

the burden of showing the absence of a

genuine issue as to any material fact.

The proper evidentiary material before

the court must be viewed in the light

most favorable to Vasser Bishop, as

executrix.

Adickes v. Kress & Co., 398 U.S.

144, 26 L. Ed. 2d 142, 90 S.

Ct. 1598 (1970)

United States v. Diebold, 369 U.S.

654, 8 L. Ed. 2d 176, 82 S. Ct.

993 (1962)

6 Moore, Federal Practice (2d ed.

1966) $56.13(3)

In that light Dr. and Mrs. Bishop at

the time of her death owned their securi-

ties as tenants in common, not as joint

tenants. Those securities disclaimed

were either securities which Mrs. Bishop

inherited from her family and in which

Dr. Bishop felt he had no proprietorship

rights, or securities the ownership of

which was attributable solely to

Mrs. Bishop.

There is no legal impediment to

giving effect to the views of Dr. and

Mrs. Bishop with respect to their equal

ownership of securities despite the form

of registration. Under similar circum-

Stanmces the Mississippi Supreme Court has

held that the determination of ownership

is a question of fact, not of law. One

must determine the intent of the parties.

Keyes v. Keyes, 252 Miss. 138,

171 So. 2d 489 (Miss. 1965)

(Series E. Government "co-owner"

bonds registered in name of hus-

band and wife were involved)

Petersen v. Petersen, 238 Miss. 190,

118 So. 2d 300 (Miss. 1960) (com-

mon stock in corporation regis-

tered in name of husband and wife

as joint tenants with the right

of survivorship)

Harrell v. Harrell, 231 So. 2d 793

(Miss. 1970) (joint savings

account registered in name of

husband and wife)

O'Connor v. Dickerson, 188 So. 2d

241 (Miss. 1966) (joint tenancy

in real estate terminated where

joint owners had executed option

7 ” F - PEF PGE IT ELT DLN TI I ELE Oa

contract and one of joint owners

died before deed executed by

both to option-holder who exer-

cised option. Intention to

terminate joint tenancy found

from language of option contract)

Bird v. Stein, (S.D. Miss., 1952)

102 F. Supp. 399, rev'd on

another point (C. A. 5, 1953)

204 F. 2d 122, reh. den. (1953)

205 F. 2d 512 (certain real prop-

erty was acquired by husband and

wife as joint tenants. Husband,

who died first, disposed of it in

his will. Wife accepted will of

husband and by her actions after

death of husband nullified joint

tenancy conveyance she and hus-

band had received)

eet tl ee IY

See Bradley v. State of New Hampshire

(S. Ct. N. H., 1956) 123 A. 2d

148. (right of surviving joint

tenant to renounce stock

recognized)

When the issue has been before it,

the Mississippi Supreme Court has con-

sistently held that the form of a joint

tenancy or co-owner registration is not

controlling with respect to true owner-

ship of both real and personal property.

A factual inquiry into the intent of

parties must be made.

The United States relied on the form

of registration to support its motion in

the District Court.

The District Court relied on the form

of registration to grant summary judgment

to the United States. In removing the

issue of ownership from a jury determina-

tion, the District Court erred. Plain-

tiff's writ should be granted so that

this court may direct the District Court

to proceed with a trial of the factual

issue.

The Federal case of Robertson v.

United States, (D.C. Ala. 1968) 281 F.

Supp. 955, illustrates a proper way to

resolve ownership issues where stocks

valued at $584,148.98 were registered in

the names of two brothers as joint ten-

ants with right of survivorship. After

the death of one brother and prior to the

filing of his estate tax return, the sur-

viving brother disclaimed one-half of the

securities.

The District Court concluded from

the facts in evidence and permissible in-

ferences to be drawn therefrom that the

joint tenancy was severed, terminated or

abandoned prior to the death of the dece-

dent either by the agreement of the

brothers or by their conduct in devoting

the securities to their partnership busi-

ness. With the termination of the joint

tenancy, the property interests of the

brothers were converted into a tenancy in

common.

Vasser Bishop is prepared to submit

LDPE LIOTTA: SEG IY SLR GIT LETTS IES BOTT SONI BS EY EAT Le SHO PA TTS —_—

29 ; 4

her case to a jury and allow a jury to

determine this important factual ques-

tion. Justice is not served when she is |

deprived of this right. ;

II.

THE INTERNAL REVENUE SERVICE WITH

FULL KNOWLEDGE OF ALL MATERIAL

FACTS MADE A DETERMINATION WITHIN

THREE YEARS AFTER DR. BISHOP'S

1961 AND 1962 GIFT TAX RETURNS WERE

FILED THAT NO GIFT TAX LIABILITY

WAS INCURRED IN CONNECTION WITH HIS

DISCLAIMER OF SECURITIES OWNED BY

HIS WIFE, THE DISTRICT COURT ERRED

IN NOT GRANTING VASSER BISHOP'S

MOTION FOR SUMMARY JUDGMENT.

Vasser Bishop's motion for summary

judgment (R. 312) stated clearly it was

predicated on the application of the

three-year statute of limitations.

§650l1(a), Internal Revenue Code of 1954,

The deposition of Lomax B. Lamb, Jr.,

taken by the United States, relates in

detail the exchange of information be-

tween the United States and plaintiff's

attorney regarding the disclaimers of

Dr. Bishop. (R. 302-310) This exchange

occurred in 1963 and early 1964, well

within the three year period from the

time the gift tax returns were filed in

1962 and 1963. The assessment and pay-

ment on which this suit is based was not

made until November 18, 1966. (R. 310)

—a

ae ;

—_ SP OR cE EGE AE TROON REE PTE RI SRR A Hh RS OE

CE ANI La EO i RENE TEI al 8M GE Sea Pe

The chronology of conversations, cor-

respondence, and interviews in connection

with the disclaimers is also related in

Vasser Bishop's answers to interrogatories

propounded by the United States. (R. 29-

31, 33-35, 37-39)

The complaint in this case alleges

that the Internal Revenue Service had full

knowledge of the disclaimers by Dr.

Bishop in February, 1962, and took no

action until 1966. (R. 6, 8)

The United States filed no affidavits

or other evidentiary material to counter

the materials of plaintiff.

Under the principles governing the

application of Rule 56(e) it would have

been entirely appropriate for the

District Court to grant plaintiff's mo-

tion. The United States could not rest

Simply on its answer, but it was re-

quired by affidavit or otherwise to set

forth specific facts showing there is a

genuine issue for trial.

Vasser Bishop can speculate that a

factual issue might be raised by the

United States with respect to the author-

ity of Felix J. Underwood, Jr., to speak

for the Internal Revenue Service on mat-

ters involving Dr. Bishop's gift tax

liability as well as his liability as exe-

cutor of the estate of Mrs. Bishop. In

1963 and 1964 Mr. Underwood was Senior

Gift Tax Examiner for the Internal

Revenue Service in Mississippi as well as

aE ; ELIOT DE OI _— -

roe

its senior estate tax examiner. He wore

two hats, not just one. (R. 399-400)

She is prepared to try this issue if so

directed--and permitted.

But the District Court in denying

plaintiff's motion for summary judgment

and granting the cross-motion of the

United States on materials then before

it departed from the accepted and usual

course of judicial proceedings.

The Court of Appeals for the Fifth

Circuit sanctioned such departure by the

District Court when it affirmed the judg-

ment of the District Court. Action by

both lower courts in this case, plaintiff

submits, calls for an exercise of this

court's power of supervision.

III.

THIS COURT SHOULD GRANT CERTIORARI

TO SETTLE THE QUESTION OF WHETHER

DISPOSITION OF THIS CASE BY THE

DISTRICT COURT WITHOUT TRIAL AND

BY THE LOWER COURT ON ITS SUMMARY

CALENDAR AND WITHOUT ORAL ARGUMENT

OR WRITTEN OPINION CONSTITUTES A

VIOLATION OF DUE PROCESS OF LAW,

AS GUARANTEED BY THE FIFTH

AMENDMENT.

Plaintiff has already discussed

reasons she believes the lower court

erred in not granting her motion for sum-

mary judgment or a trial on the disputed

issue of fact regarding ownership of the

non

securities disclaimed by Dr. Bishop.

On appeal, after learning that the

case had been assigned to the summary

calendar of the lower court, plaintiff

moved to remove the case from the sum-

mary docket and to permit oral argument.

This motion was denied after the lower

court had already issued its order

affirming the District Court. (Appendix

Wwe )

Plaintiff sympathizes with the lower

court in its efforts to seek ways to ex-

pedite disposition of appeals. Its

opinion in the case of Isbell Enterprises,

Inc. v. Citizens Casualty Co., et al.,

(CCA 5, 1970) 431 F. 2d 409, related its

experience in judicial screening of cases

under its Rule 18,

The office of the Clerk for the Fifth

Circuit Court of Appeals writes that no

officially published statistics have

appeared since Isbell, but that, in fis-

cal year 1971, 652 cases were placed on

the summary calendar, with 776 cases

argued orally. The trend towards sum-

mary disposition is thus accelerating.

Not all appellate tribunals view the

summary arrangement with equal satisfac-

tion. In SEC v. Texas Gulf Sulphur ©o.,

(CCA 2, 1971) 446 F. 2d 1301, the Second

Circuit indicated its reservations about

limiting oral argument on an original

three-judge hearing.

REPS SRE I URS IG GAL REE EY TITLES TOS

The opinion of the District Court

contained errors which plaintiff believes

she might have clarified with oral argu-

ment to the lower court. (E.g., the

District Court misread the language of

the disclaimer supplement of January 29,

1962. Compare R. 72 and 321) That er-

roneous conclusion on a significant point

may well have determined the decision on

appeal. Now, without a written opinion

on appeal, the statement in the District

Court opinion goes uncorrected.

On the facts of this case, plaintiff

submits that the summary judgment granted

by the District Court and the summary

disposition of her appeal by the lower

court failed to accord plaintiff due

process.

Plaintiff recognizes that due pro-

cess of law under the Fifth Amendment

"has never been a term of fixed and in-

variable content," requiring oral argu-

ment in every instance.

F.C.C. v. WIR, 337 U.S. 265, 275,

69 S. Ct. 1097, 93 L. Ed. 1353

(1949)

Injustice did result here, plaintiff

submits, and she requests that a writ of

certiorari be granted so that the Fifth

Amendment due process issue can be deter-

mined in her case and also, perhaps, that

general guidelines can be given for use

of the summary calendar by the lower

court.

ESF NEL AATISIRE ESL IS NER OLENA AE LILI ELEY 1 ELLEN OL GILLIE LDI LIE PELL LE LLL LE TELL DEAE LI PE ES ——

CONCLUSION

For the reasons stated, Vasser

Bishop respectfully prays that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Fifth Circuit.

Respectfully submitted,

Lomax B. Lamb, Jr.

Attorney for Vasser

Bishop, Executrix of the

Estate of David H. Bishop

Plaintiff-Appellant

* — nyero 2 —

LS HRY: RP PEE et eave HE P

PARV PRINTED CLOSE TO EDGE

cma, eoramupctes

APPENDIX A

70-5970

[ @ 147,483]

Vasser BISHOP, as Executrix of the

Estate of David H. Bishop, Deceased,

PLAINTIFF v. US., DEFENDANT.

U.S. District Court, N. Dist. of Miss., WwW.

Div., No. 6943-S, July 1, 1970. Decision

for Govt.

1. GIFT TAX—Transfers in general

—transfers subject to gift tax. Hus-

band’s transfer of securitics to daughters,

who were contingent legatecs, in ac-

cordance with disclaimer of wife’s be-

quest of jointly-held securities, is taxable

gift. No evidence that joint tenancy was

severed during wife's lifetime; securities

passed to husband by survivorship and

not by bequest. Reference: 1970 P-H Fed.

*, ESTATE AND GIFT TAX PRO-

CEDURE—Limitations—period for as-

sessing and collecting—gift tax decisions

on limitations on assessment and collec-

sion of taxes. When husband, who died

January 3, 1963, made disclaimers. held

to be taxable gifts, on November 27, 1961

and January 29, 1962, and gift tax re-

turns filed by him for 1961 and by his

executrix for 1962 made no mention of

disclaimers, which exceeded 25% of ree

ported gifts, deficiency assessments

made July 25, 1966 not barred by 3-year

period of limitations. Fact that while

examining husband’s estate tax return

IRS agent received knowiedge of dis»

claimers immaterial. Since disclosure

was not made on gift tax returns or at

tached statements, 6-year period of limi-

tations applies. Reference: 1970 P-H Fed,

{ 126,354.2.

Lomax Lamb, P.O. Box 352, Marks,

Miss.. Lowell E. Grisham, Thomas R

Eihride >, Oxford, Miss., Attys. for Plaine

tilt,

JIeck DY Warren, Refund Trial Scé,

No. 2, ') pt. of Justice, Wash., D.C., HL

M. Ray, U.S, Atty.. 2.0. Box 191, Oxford,

Miss., for Defendan..

Memorandum Opinion

SMITH, District Judge:

This case is before the Court on plain

tiff'’s Motion For Summary Judgment

and on defendant's Cross-Motion For &

Summary Judgment on the First and

Second Counts of the complaint. The

Third Count of the complaint is not im

volved in either of the motions afore

said.

Dr. David H. Bishop and his wife,

Mary H. Bishop. resided for many years

at Oxford, Mississippi, where Dr. Bi

wos engaged <a: a professor at the U:

versity of Mississippi. Mrs. Bishop died

Ocizber 3. 1961 at the age of 76 years.

Dr. Bishop ¢:cd January 9, 1965, at the

age of 92 yenrs.

Mrs. Bishop’ ieft a Last Wii ané

Testament *v" ‘vhich she devised and be-

queathed her estate to Dr Bishop. snoulé

he survive her. if not, to her <hree

daughcers.-

Dr. Bishop, as the executor of his

wife’s estate, filed an Estate Tax Rctugr

(Form 706) with the Jackson, Missis-

sippi Office of the Internal Revenst

Service on February 21 1962. In Sched

ule E (Jointiy Owned Property) of th

1 Mrs. Bishop will be referred to in this opinion as the ‘‘Decedent’.

2-The pertinent parts of the decedent's will dated July 5, i958, are:

“To my husband, David H. Bishop,

executor.

; I give my entire estate

of David H. Bishop and Mary R. Bishop with right of survivership,

now in joint ow2crshi}

appointing hin

In event my husband does not survive me I give my estate, not including home, +o BY

daughters, Vasser Bishop, Mary Hartwell Howorth and

and share alike, and name Vasser executrix.

To Vasser I leave the home.”

Q 147,482

Marthe Bishop Henton, sher

ete .

POOR COPY

12-31-70

BISHOP v. U.S.

70-5971

Cite as 26 AFTR 2d 70-6070

return, the Executor listed jointly owned

and held stocks and bank accounts.3 The

schedule reflects that the Securities were

held by the Decedent and Dr. Bishop as

“joint tenants with the right of survivor-

ship’. The schedule contained two groups

of Securities. One group, said to contain

Securities inherited by Decedent from

her mother, were listed at full value. The

other group, said to have been acquired

by the Decedent and Dr. Bishop through

joint effort and contributions, were listed

at one-half the full value. The total value

of the Securities listed under Schedule

E of the return was $166,929.21.

Schedule M (Bequests, etc., To Sur-

viving Spouse—Marital Deduction) of

the return lists the entire estate of

the value of $172,929.21. The entire estate

passed to Dr. Bishop by the Will of the

Decedent. The Executor deducted from

the value of the entire estate the sum

of $82,838.25, representing the value of

certain Securities said to have been dis-

claimed and released by Dr. Bishop to

the contingent legatees of Decedent. The

deduction of this amount left a total of

$90,090.96, which amount was further

reduced by federal and other death taxes

payable out of the interest passing to

Dr. Bishop, as the surviving spouse,

under the Will. Thus, the net value of

that part of the marital deduction, con-

stituting property passing to Dr. Bishop

as the surviving spouse, after deducting

the value of the property disclaimed by

him, amounted to $86,687.54,

Schedule O, the Recapitulation Sched-

ule of the return, reflects an adjusted

gross estate in the sum of $167,270.48.

The Executor reduced this amount by

one-half, or $83,635.24, the maximum

marital deduction to which the estate

was entitled.

The funeral expenses, administration

expense and debts of the decedent

amounted to $5,658.73. Thus, the total

allowable deductions amounted to $89,-

293.97. Deducting this amount and the

exemption of $60,000.00, resulted in a

taxable estate of $23,635.24. The estate

tax due on the return was $2,108.93.

On November 27, 1961, after the death

of Mrs. Bishop, but before the estate

return was filed, Dr. Bishop executed a

disclaimer and release by which he under-

took to disclaim and renounce any in-

terest which he had, as the surviving

registered joint owner, in a portion of

the Securities shown in the Estate Tax

Return and listed under Schedule E

thereof.

In the disclaimer Dr. Bishop referred

to the Securities covered thereby as

being stocks inherited by Decedent from

her parents. The disclaimer was execu-

ted in favor of the three daughters of

Dr. Bishop and Decedent, contingent

legatees of Decedent. The Securities,

prior to Decedent’.s death, were held by

her and her hus»and as joint tenants

with the right of survivorship. The dis-

claimer recited that it was the intention

of Dr. Bishop to comply with the pro-

visions of Section 2056(d) of the In-

ternal Revenue Code of 1954,4 and Sec-

*¥For convenience stocks and bank accounts will be sometime referred to in this

opinion as ‘‘Securities’’.

“26 U.S.C.A. § 2056(d). This subsection provides, in part:

“(d) Disclaimers.—

(1) By surviving spouse.—If under this section an interest would, in the absence of

~& disclaimer by the surviving spouse, be considered as passing from the decedent to such

spouse, and if a disclaimer of such interest is made by such spouse, then such interest

shall, for the purposes of this section, be considered as passing to the person or persons

entitled to receive such interest as a result of the disclaimer.”

See also 26 U.S.C.A. § 2056(e), in which its pertinent parts provide:

i “(e) Definition.—For purposes of this section, an interest in property shall be con-

@ sidered as passing from the decedent to any person if and only if—

é (1) such interest is bequeathed or devised to such person by the decedent;

(2) such interest is inherited by such person from the decedent;

a *. * * * * * * * *

(4) such interest has been tr insferred to such person by the decedent at any time;

(6). such interest was, at the time of the decedent's death, held by such person and

j ted decedent (or by them and any other person) in joint ownership with right of survivor-

Pp;

(6) the decedent had a power (either alone or in conjunction with any person) to

appoint such interest and if he appoints or has appointed such interest to such person,

or tf such person takes such interest in default on the release of nonexercise of such

‘ power cere

@ 147,483

» Prentice-Hall, Inc.—Fed. Tax

REGAMER ne? aA AT RAT MS CREA MUIR te AE thant MA

COPY PRINTED CLOSE TO EDCE

70-5972

3 37

BISHOP v. US.

12-31-70

Cite as 2% AFTR 24 70-5070

trons 672-71 through 672-81, Mississippi

Code, 1942, Ann. Recompiled.5

Contemporaneously with the dis-

claimer Dr. Bishop transferred a portion

of the Securities listed in Schedule E of

the return to the First National Bank

of Memphis in trust for the use and

benefit of his three daughters. The

aggregate value of these Securities was

$63,000.00.

A short time later on January 29,

1962 Dr. Bishop executed a supplement

to the original disclaimer, disclaiming

and releasing to his said daughters, any

interest which he had, as surviving regis-

tered joint owner and as legatee of

decedent, in a portion of the securities

shown on Schedule E of the return. Un-

like the original disclaimer the supple-

ment thereto described the Securities

therein disclaimed as stocks owned

equally by Dr. Bishop and Decedent.

Contemporaneously with the execu-

tion of the supplement to the original

disclaimer, Dr. Bishop transferred addi-

tional Securities of the valuc of $27,000.00

to the First National Bank of Memphis

to be held and administered under the.

trust indenture hereinbefore mentioned.

The disclaimers were executed and re-

corded in all respects as required by

Mississippi Statutes. (Release Of Powers

Of Appointment Act, Mississippi Code,

1942, Ann., Recompiled §§ 672-71 et seq.)

As has been hereinbefore mentioned,

subsequent to the execution of the dis-

claimers, on February 21, 1962, Dr.

Bishop filed the Estate Tax Return for

the estate of the Decedent. With refer-

ence to the deduction of $82,833.05 shown

in Schedule M of the return, Dr. Bishop ©

described the deduction as being justified

in the language as follows: :

“By written instrument executed on

November 27, 1961, and recorded in ©

Book 314, at page 251, of Chancery

records of Lafayette County, Missis- —

sippi, and a supplement thereto ex-—

ecuted January 29, 1962, and recorded |

in Book at page , of the Chancery

records of Lafayette County, “Missis- -

sippi, surviving spouse disclaimed

and released to contingent legatees

of decedent the following stocks:”

On January 30, 1962, before the filing

of the Estate Tax Return for the estate

of Decedent, Dr. Bishop filed with the

Jackson, Mississippi office of Internal

Revenue Service a Gift Tax Return for

the year 1961. Dr. Bishop included as

a taxable gift for the calendar year 1961,

the transfer of Securities amounting to

$63,000.00 to the First National Bank

of Memphis by his trust indenture of

November 27, 1961. Dr. Bishop did not

mention or in any way refer to the dis-

claimer of November 27, 1961, nor did

he attach a statement to the return

regarding such transaction. The return

was entirely silent in regard to the dise

claimer. After deducting the exclusions

to which Dr. Bishop was entitled and the

® Sections 672-72 and 672-73, Miss. Code 1942 Ann. Recompiled, provide:

“$ 672-72 Definitions.

When used in this act unless the

(a)

go, any power to invade property,

under which an estate or trust is held or c

thereunder, and any power remaining where

or hereafter been made with respect to

‘Power’ includes any power to appoint

any power to alter, amend or revoke any instrume

reated or to terminate

one or more partial releases have heretof

a power, whether heretofore or hereafter createé

context otherwise requires:

or designate to whom property shall

any right or interest

or reserved, whether vested, contingent or conditional and whether classified in law or

known as a power in gross, a power appendant, a power appurtenant, a collnteral power,

a general, special or limited power,

and irrespective of when, in what manner,

(b)

favor the power may be exercised.

(d) ‘Property’

whether real or personal, any and all interest in property,

and includes any part of

property, which is subject to the power,

part of the interest in property, and any part

‘Release’ means renunciation, relinquishment, surrender, refusal

(e)

sive or non-exclusive powcr,

or in whose favor, it may be exercised.

or exclu

‘Donee’ menns sny person whether r

elther alone or with anether, has the right to cxercise a powcr.

(ce) ‘Objects’ when used in connections with a

when used in connection with a power means any

or otherwis¢,

esident or nonresident of this state, wha

power means the person in whose

and all property,

and any and all income from

the property, any

of the income from property. '

to accept, ex

tinguishment, and any other form of release’’.

“§ 672-73. Right to reicase.

Unless the instrument creating the power

specifically provides to the contrary, the

donce of a power, whethcr now existing or hereafter created, may;

(a) At any time complctely release his power.

(b) At any time or times release his power:

subject thereto; (two) As to any one or more of

(one) As to any property which #

the objects thereof; or (three) So as

limit in any other respect the extent to which it may be exercised.”

POOR COPY

BPR Dy BE MBAR RTE a RAE i

specific exemption of $30,000.00 there

was no tax due by Dr. Bishop on the

return for that year.

After Dr. Bishop's death plaintiff, as

the Executrix of his estate, filed a gift

tax return for the estate for the calen-

dar year 1962. The return was filed with

the Jackson, Mississippi office of the

Internal Revenue Service on

26, 1963. Plaintiff reported the addi-

tional Securities transferred by Dr.

Bishop during 1962 to the First National

Bank of Memphis under the trust in-

denture aforesaid, amounting to $27,-

000.00. After deducting the exclusions

to which Dr. Bishop was entitled, the

estate paid a tax of $165.00 on taxable

gifts of the value of $6,000.00. The re-

turn for the calendar year 1962 omitted

reference of any kind to the supplement

to the disclaimer, which supplement was

executed during the calendar year 1962.

The Estate Tax Return for decedent’s

estate was processed in the Jackson,

Mississippi office by an Estate Tax Ex-

aminer.6 In the course of examining

the return, the Agent received knowl-

edge of and reviewcd the facts relative

to the disclaimers executed by Dr.

Bishop during the calendar years 1961

and 1962.

Pursuant to a prior request, copies

BISHOP v. U.S.

Olte as 26 AFTR 24 70-5970

included in the 1961 return the Securities

disclaimed by Dr. Bishop on November

27, 1961, and included in the 1962 return

held that the disclaimers executed by

Dr. Bishop for the years in question con-

stituted transfers of by gift

within the meaning of Section 2501 of

the Internal Revenue Code of 1954,* and

* The Hstate Tax Examincr will be hereinafter referred as the “Agent”.

* This date is more thn three years after the Gift Tax Returns for the calendar years

1961 and 1962 were filca with the District Director.

* The federal statutcs involved in the questions presented to the Court by the sum-

mary motions of the partics «re as follows:

“Internal Revenuc Code of 1954 (26 U.S.C.):

2501 [as amended by Sec. 4(d)(2) of the Act of 14,

Sec. -

998) Imposition of Tax.

1960, P.L.. 86-779, 74 State.

(a) Gencral Rule.—For the calendar year 1955 and each calondar year thereafter a

and whether the

nonresident

payable by stamp, at any time after such tax becamo duc

ject to the limitations contained in this chapter, the

section 2501 shall apply whether the transfer is in trust or otherwise,

in section 2592, is hereby imposed on the transfer of property

trans-

except

ments,

with interest on tho 1961 return was

$11,089.72. The amount of the nssess-

ment with interest on the 1962 return

amounted to $8,267.98. After having

Director,

Plaintiff has filed this action to recover

the amount paid by her on the assess-

ments aforesaid with statutory interest.

The pending motions present two

questions for the Court's consideration.

These are:

1. Whether the documents entitled

“Disclaimer and Release” executed by

Dr. Bishop in 1961 and 1962 constitute

transfers of property by gift within the

meaning of Section 2501 of the Internal

Revenue Code of 1954.

2. Whether defendant’s assessments

of gift taxes and interest for calendar

years 1961 and 1962 are governed by the

The statute imposes a tax “on the

transfer of property by gift” by any in-

dividual. [26 US.C.A. § 2501(a)(1)]

The tax imposed “shall apply whether —

the transfer is in trust or otherwise,

whether the gift is direct or indirect,

and whether the property is real or per-

sonal, tangible or intangible”. (26 US.

C.A. § 2511(a)). ;

Tho plaintiff contends and urges Upon |

the Court that Dr. and Mrs, Bishop were

equal, not joint, owners of the Sccuriltes.

This contention is, of course, made in

the very teeth of the actual estate cre~

ated by the phraseology utilized when

the Securities were issued. The estate

created by the ogy used is &

joint estate with the right of survivor-

ship, or rather an estate by the entirety,

as the joint owners were husband and

wife. Regardless of the apparent estate

created, plaintiff contends that the acts

of the joint owners clearly demonstrate

that they considered the estate as oné

in common. ;

Plaintiff urges the Court te

upon

support her contention that the

ments made by Dr. Bishop in his

that “all of our material possessions

owned in common by «ty wife and

self, share and share alike”, and

—

(e) Omission From Gross Incomc.—Dxcept

tim

the

entirety.

planatory words showing an intent to create such an esta’

@ 147,483

or a proceeding in court for

e within 6 years after

gross

hich is omitted from the gross

item is disclosed in the return, or

as othorwiso provided in subscctton ()—

estate or the total gifts, there

estate or from the

in a statement

apprise the Secretary or his delegate of

tT 2

ital d

wee yee

)

op was other than that the stock,

by the writer of the letter to Dr.

op, was to be held by Dr. Bishop

Decedent as joint tenants. The letter

ne probative value in the case. ; -

Plaintiff urges upon the Court to con-

the fact that Dr. Bishop stated in

disclaimer executed by him on Janu-

all of their interests in corporations

fact

Dr. Bishop, in his discussions with

his

j tenants.

These expressions made by Dr. Bishop

the question of the severance of the joint

estate held by the parties prior to dece-

dent’s death consists of statements made

by them in their respective Wills. Note

the above quotation from Dr.

Will. The decedent undertook in her

Will to bequeath to Dr. Bishop the prop-

erty held by her and Dr. Bishop in joint

It is recognized that “A joint tenancy

may be terminated altogether by mutual

agreement between the parties or by

any conduct or course of dealing suffi-

cient to indicate that all parties have

mutually treated their interests as be-

longing to them in common”.?*

It is also recognized that “The sever-

ance must take place before the death

of the cotenant who has alienated his

interest, and before the remaining coten-

ant has become the owner of the whole

by virtue of his right of survivorship,

and, hence, where a conveyance by a

cotenant does not take effect until after

his death, there is no severance”.™

In addition, “There can be no sever-

ance of a joint tenancy by devise, since

the right of survivorship takes precedent

thereof” .**

» 48 C.J.S., Joint Tenancy, at 928.

2 Id. at 928, és

@ 147,483

EP es

CCPY PRINTED CLOSE TO EDCE

ELPA SL TEE RESTS ———

the

was acquired create a joint tenancy

right of survivorship, and if it

there a termination of it during

gP RRA E

“Defendants urge it did so create

and that it was not scvered by con-

duct or otherwise. Plaintiffs say it

did not create a joint tenancy under

the Mississippi statute, but if it did

it was severed and terminated during

the ‘etime of V. A. Stein by conduct

and written instruments.”

In connection with the estate created

by the deed the court said:

“Jt is clear from the language of

the deed that it was intended to cre-

ate a joint tenancy and not tenants

in common. More convincing lan-

guage could not have been choscn,

and from the entire language of the

quired unity of time, title, interest

and possession.

> . o a e

Therefore upon the death of V.

Stein the fee-simple title vested

in Sarah Stein.”1¢

during his lifetime, many acts of owner-

the property, and used it as a

the

Will and Testament he under-

“ise to his wife for her life all

title and interest in

for his children and two named

children. Shortly after executing

the Will was probated there

estate left and very little

and dealing of course under some cir-

cumstances can sever such an estate”,!"

citing 48 C.J.S., Joint Tenancy, §4, at

927, 928.

In discussing whether the evidence

in the case sustained a severance of the

joint tenancy during the lifetime of the

joint tenants the court said:

“Usually and gencrally a severance

which will defeat a joint tenancy

means a separation of the interests

of joint tenants, vesting of the in-

terest of one, separated from the in-

#102 F. Supp. 399, United States District Court for the Southern District of Miss..

W. D. (2952).

x 102 F. Supp. 401.

* Id. at 401.

* Id. at 401, 402.

™ Td. at 402

@ 147,483

na hat a ake a

POOR COPY

personalty.

Counsel for plaintiffs contended that by |

this course of conduct of the husband,

there was a severance of the joint ten-

ancy. The Court held that “Conduct —

family until his death. In ;

12-31-70

terest of the other, in some third

person. Tindall v. Yeats, 392 Ill. 502,

64 N.E.2d 903. The course of dealing

in this case fails to show that there

was a severance or any intent for a

severance.”

e * * * *

. . . Under some facts there could

be a severance by conduct which

would amount to an estoppel and the

statute of frauds would not apply.

However, such conduct or course of

dealing is not present in this case.

A severance from a joint tenancy to

a tenancy in common is not a convey-

ance when it ariscs from the course

of dealing, but is simply a change

from one form of ownership to that

ot another form and arises by opera-

tion of law.’"18

The court in Bird, also discussed at

length the nature of an estate by the

entirety. The holding of the court seems

to be quite appropriate in the case sub

judice, as the joint estate with the right

of survivorship held by Dr. Bishop and

Decedent in the Securities in question

was in reality an estate by the entirety.

The Bird court said:

“Counsel for defendants suggests

but does not argue at length the most

decisive and controlling point, which

in my judgment, definitely settles

the severance question. The convey-

ance here not only created a joint

tenancy but also created an estate by

the entirety and this is recognized

by the statute of Mississippi and the

decisions thereunder. In Sale v.

Saunders, 24 Miss. 24, the Court said:

“The same words of conveyance which

would make two other persons joint

tenants, will make the husband and

wife tenants of the entirety. Both

are seized of the entirety, and neither

can sell without the consent of the

other, and the survivor takes the

whole.”

An estate by the entirety consists

of five unities: time, title, interest,

possession and marriage, all of which

must coexist, while a joint tenancy

possesses all these except marriage.

Frederick v. Southwick, 165 Pa.

Super. 78, 67 A.2d 802.

~ 42

BISHOP v. U.S.

Cite as 26 AFTR 2d 70-5970

70-5977

For a most exhaustive collection of

authorities on this point see, Words

& Phrases, Vol. 15, p. 327. Under

the authorities there cited and col-

lated it is clear that upon the death

of V. A. Stein, Sarah, ‘simply con-

tinnucd, in virtue of the nature of

the tenancy, to possess and own what

she already had.’ Lilly v. Smith, 7

Cir., 96 F.2d 341, 343 [21 AFTR 114].

In that case it was held that it is

the conveyance to both of them, the

husband and wife, that creates the

estate which ripens into a fee-simple

title upon the death of one. In the

case at bar all five of the unities are

present and under the Mississippi

authority supra it follows that upon

the death of V. A. Stein title to Little

Hope Plantation vested in fee simple

in Sarah Stein.’*

In the case of Wolfe v. Wolfe,2° the

Mississippi Supreme Court considered

the legal effect of two deeds. One deed

conveyed certain real property “to

Willis Wolfe and Della Wolfe and the

survivor of them”. The second deed

conveyed other real property to the same

partics making use of the phraseology

as follows: “do hereby convey and war-

rant unto Willis Wolfe and his wife,

Della Wolfe, and to the survivor of

them.”*1 In Wolfe the court said:

“We do not undertake to determine

whether the estate created is one of

joint tenancy or entirety. In either

case the result is the same, the sur-

vivor took the entire property.2

... We think the deeds under con-

sideration do manifest an intention

to create an estate in joint tenancy

and not an estate in common. The

first conveys the property to the

grantee ‘and the survivor of them’,

the second conveys to them ‘and to

the survivor of them.’ The two quoted

expressions mean the same thing.

The distinguishing and most impor-

tant incident of title by joint tenancy

is the doctrine of survivorship, by

force of which, upon the death of one

joint tenant, the joint estate remains

unimpaired with the survivor. ...

If the grantees are held to be tenants

in common, it is necessary to erase

8 Id. at 403.

wid. at 404.

® 42 So. 2d 438 (1949)

“1d. at 438,

= Id.

Prentice-Hall, Inc.—Fed. Tax

NEO AM SENREE DP ORET NEL ALLIES BALE PREF ELL IIE PELE LIL IE

COPY PRINTED CLOSE. TO EDGE

70-5978

and eliminate the quoted provisions

from the deeds. No proper exercise

of judicial power would permit that.

It is impossible to have the right of

survivorship in an estate in common.”

(Emphasis supplied)

The Wolfe case dealt with real prop-

erty. The case of Duling v. Duling’s

Estate dealt with the contents of &

safety deposit box. The court held that

money in a lock box was owned by the

decedent and another under a joint ten-

ancy agreement, and that the money

was no part of the estate of the dece-

dent. The court said:

“The trial court awarded $2,000

of the fund in question to Albert

Duling upon the correct theory that

the joint tenancy agreement con-

trolled and that this fund was no part

of the assets of the estate of Miss

Duling.”25

In Vaughn c. Vaughn, * another Mis-

sissippi case, the court considered the

ownership of a promissory note and deed

of trust which were payable to husband

and wife. The opinion reveals that

Vaughn, the decedent, during his life-

time, was engaged as & contractor. In

the course of his work he constructed @

church building. Vaughn made a loan

to the church to finance the construction

of the building. The church issued to

Vaughn its note to evidence the debt

and a deed of trust to secure payment

of the note. The note and deed of trust

were payable to Vaughn and his wife.

The note was payable “to the order of

E. J. Vaughn and (Mrs.) Inez Pickett

Vaughn, or to the survivor of them.”

The beneficiary in the deed of trust was

designated as “E. J. Vaughn and Mrs.

Inez Pickett Vaughn, or the survivor

of them”. Vaughn retained both docu-

ments until his death, and did not de-

liver them to Mrs. Vaughn. They were

among his effects at his demise. Mrs.

Vaughn was appointed executrix of the

estate. She accounted for the note and

deed of trust as assets of the estate in

the inventory and final account. After-

wards, Mrs. Vaughn filed an amended

Sere - ~

BISHOP v. US.

Olte as 26 AFTR 2d 70-6970

12-81-70

account, in which she asserted owner

ship to the note and deed of trust.

Two questions were involved in the

case relative to the note and deed of

whether the

right of er

tion was whether delivery of the note

and decd of trust by the church to

Vaughn, who retained them in his pos-

session until his death, was sufficient to

vest a right of joint tenancy in Mrs.

Vaughn. The court answered both ques-

tions in the affirmative. We are :

concerned in the cose sub judice j

the latter question. In regard to f

former the court said: |

“The words uscd in Wolfe are sub-—

_ stantially similar to those in the in-

stant note and deed of trust. We.

think the reasons expressed in that.

case are sound and apply here. In

brief, the note and deed of }

words which create a joint tenancy

with right of survivorship.”

° -_ e s

survivorship. The other ques-

not

with

the

livery

to one of the

Vaughn, constituted also a construc

these instruments te

part of the |

court’s decree holding to con!

is reversed, and title to note ang

deed of trust are adj to be

Mrs. Vaughn.” 28

The effect of the court’s holding

that the note and deed of

become an asset or a part

of the decedent.

In support of her contention that

Securities were held as tenants in come

the

than as joint tenants,

relations cases. In Keyes the hus

sued the wife for a divorce. The :

—

3 Id. at 439.

% 52 So. 2d 39 (1951).

Id. at 45.

% 118 So. 24 620 (1960).

# 118 So, 24 620, at 622,

Id. at 623.

® Keyes v. Keyes,

Miss. 190, 118 So. 2d 300 (1960).

PEM LR PLO EP,

POOR COPY

ns2 Miss. 188, 171 So. 24 489 (1965) and Petersen v. Petersen, 98

STOO

SORES 2 RAL LPB De Ee LY

“4a="

BISHOP v. U.S.

Olte as 26 AFTR 2d 70-5920

12-31-70

court awarded the husband a divorce and

denied the wife any interest in property

jointly owned by the parties. The prop-

erty involved in the case included United

States Government Series E Bonds in the

sum of $20,000. The bonds were pur-

chased by the husband from his personal

funds but were issued in his name and

that of his wife so that the bonds could

have been surrendered for payment by

either of them. The husband kept the

bonds in his possession. The bonds were

produced in court and reflected that they

were co-owner bonds, payable to the

husband or the wife. The court said:

“The U. S. Government bonds were

Series E Bonds and were what are

commonly called co-owner bonds.

They were payable to Harvev W.

Keyes or Mignonne W. Keyes... As

to the U. S. Government Series E

Bonds, between two co-owners, it is

a question of fact, not of law, as to

the extent of the property interest

of the co-owners. One co-owner may,

as a matter of fact, be the sole owner,

he may be half owner, or he may

have some other fractional interest

therein. Under the facts in this case,

which show that the appellee pur-

chased these bonds with his own funds

and has had them in his possession

since that time, he is the sole owner

of the bonds. The chancellor was not

in error in denying appellant any in-

terest in these bonds. 31 Code of

Federal Regulations, Money and Fi-

mance: Treasury §315.13 (1949);

United States v. Stock Yards Bank of

Louisville, 231 F. 2d 628 [49 AFTR

486] (6 Cir., 1956).” 30

In Keyes the court was concerned with

government securities, which are, of

necessity, governed by governmental

regulations. In reaching a decision the

court relied upon a Sixth Circuit case.

United States v. Stockyards Bank of

Louisville, 6 Cir. 1956, 231 R. 2d 628

[49 AFTR 486]

In that case the question of estate held

in Series E United States Savings Bonds

by co-owners was presented to the court

for its decision. The court held:

“This court has held that co-own-

ship by husband and wife of Series E

Bonds is not the equivalent of tenancy

by the entirety under state law, but

70-5979

rather is an estate the limitations and

conditions of which are delineated by

the terms of the contract and by fed.

eral law...

For the same reasons that co-own-

ship cannot be equated to tenancy by

the entirety, it cannot be equated to

joint ownership. While co-ownership

and joint ownership possess many of

the same incidents, notably the right

of survivorship, they are not the same,

One of the important differences is

that a co-owner may alone present the

bond for redemption, receive payment

in full, and thereby eliminate the

other co-owner’s interest in the bond,

so far at least as the issuer is con-

cerned. 31 Code Fed. Reg. § 315.45.

As between two co-owners, how-

ever, the regulations as well as judicial

decisions have recognized that the

extent of the property interest of each

is a question of fact, not of law. One

co-owner may as a matter of fact be

the sole owner of the bond; he may

be a half owner; he may have some

other fractional ownership.” 31

It is clear that Keyes is inapposite to

the case sub judice for two apparent

reasons. First, the case dealt with gov-

ernment bonds. The conditions upon

which such bonds may be surrendered are

determined by government regulations.

The courts have held that ownership of

such bonds is a question of fact, not of

law. Secondly, Keyes involved questions

arising during the lifetime of the co-

owners. Such is not the case in the action

sub judice.

Petersen affords plaintiff little com-

fort. Petersen, like Keyes involved a

divorce action and the award of alimony

and counsel fees to the wife. The evi-

dence showed that the husband had ac-

quired certain corporate stock, issued

originally in his name only. Later the

husband surrendered the stock and

caused it to be reissued in his name and

that of his wife, as joint tenants with

the right of survivorship. The wife

claimed that the husband made her a gift

of a one-half interest in the stock. The

trial court held on conflicting evidence

that the husband made a valid gift of

one-half of the stock in question to his

wife. The Supreme Court affirmed the

lower court holding on this issue. Plain-

* 171 So. 2d at 491.

® 231 F.2d 628 at 630, 63L.

‘Prentice-Hall, Inc.—Fed. Tax

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| INL IEEE OS POND — oo eh nl ART Es ay PE ee

BISHOP v. US.

70-5980

tiff asserts that Petersen enunciates the

Mississippi rule that the extent of prop-

erty interests of joint owners and co-

owners in stock, bonds, and bank de-

posits is a question of fact, not of law.

However, Petersen, like Keyes is in-

apposite to the case sub judice for the

reason that the court in Petersen con-

corned the interest of joint tenants with

the right of survivorship in the property

while both tenants are living.

In the case sub judice Dr. Bishop

simply continued, in virtue of the nature

of the tenancy, to and own what

he already had. Bird v. Stein, supra, at

404.

The Court finds that upon the death

of Decedent, Dr. Bishop, as the surviving

joint tenant, became the absolute and

unqualified owner in fee simple of the

Securities in question, by virtue of the

death of Decedent, and not by virtue of

Decedent’s Will; that the said Securities

did not pass from Decedent to the said

surviving tenant, but rather the estate

which the surviving tenant held jointly

with Decedent ripened, by virtue of De-

cedent’s death, into an absolute, unquali-

fied fee simple estate for the surviving

joint tenant, and, finally, that no interest

in and to said Securities, at any time,

became a part cf Decedent’s probate

estate.

Plaintiff asserts that Dr. Bishop exe-

cuted the disclaimers pursuant to the

provisions of Section 2056(d) of the

Internal Revenue Code of 1954, (See

footnote 4) and Sections 672-71 through

672-81, Mississippi Code, 1942, Amnno-

tated, Recompiled (See footnote 5), for

which reason, the disclaiming of any

interest which he had in the Securities

subject to the disclaimer, did not consti-

tute a taxable gift within the meaning

of 26 U.S.C.A. §§ 2501 and 2511. The

provisions of 26 U.S.C.A. § 2056 apply

to “Bequest, etc., to Surviving Spouse”,

and the allowance of the marital deduc-

tion. Section 2056(d) relates to dis-

claimers in relationship to the marital

deduction, and has no application to tax-

able gifts.

The Internal Revenue Code of 1954,

26 U.S.C.A. § 2514, deals with powers

of appointment and concerns transfers

under the Gift Tax Chapter of the Code.

Section 2514(b) provides:

“(b) Powers created after Oc-

147,483

ke IE EPI

12-81-

Olte as 26 AFTR 2d 70-0970 b

tober 21, 1942.—The exercise or re

lease of a general power of ap)

ment created after October 21, 1

shall be deemed a transfer of prope

by the individual possessing su

power. A disclaimer or renunciati

of such a power of appointment sh

not be deemed a release of su

power.” ©

Treasury Regulations Scotion 25.2514

1(c) provides:

“Where the law governing the

ministration of the decedent's

gives a beneficiary, heir, or n

kin a right to completely and

qualifiedly refuse to accept own

of property transferred from a

cedent (whether the transfer is

fected by the decedent’s will or

the law of descent and distribution

intestate property), a refusal to

cept ownership does not constit

the making of a gift if the refusal

made within a reasonable time af

knowledge of the existence of oe

transfer. The refusal must be

equivocable and effective under

local law. There can be no refusal

ownership of property after its af

ceptance. Where the local law di

not permit such a refusal, any

position of the beneficiary, heir,

next-of-kin whereby ownership

transferred gratuitously to an

constitutes the making of a gift

the beneficiary, heir, or next-of-kix,”

The Mississippi “Release of Power

Appointment Act” (Footnote 5) provi

for a release of a “power”. The

“Power” is defined in the Act so as &

include “any power to appoint or desig:

nate to whom property shall go”. Sectigz

672-72, Mississippi Code, 1942, Amp

notated, Recompiled. The Act has no

been the subject of judicial interpreta

tion by the Mississippi Supreme

and this Court must give the Act

interpretation which he believes a

sissippi Court would give it. ¥

The Court is of the opinion that th

Act does not apply to the transfer o

an interest in property which is

absolutely and unqualifiedly by the Les

son undertaking to release the pow

The Act does not apply to absolut

ownership. ey

The execution of the disclaimers b

Dr. Bishop amounted to nothing

than a transfer of property owned

iene Na APLAR PEN BIOL IRD BEN. HA co |

POOR COPY

12-31-70

solutely by him, and constituted, in the

opinion of the Court, a transfer of prop-

erty by gift, subjecting it to tax imposed

by 26 U.S.C.A. § 2501.

[2] Does the three or the six year

statute of limitation govern the defend-

ant’s assessment of gift taxes for the

calendar years 1961 and 1962?

Having reached the conclusion that

the execution by Dr. Bishop of the dis-

clauimers in 1961 and 1962 constituted

transfers of property by gift, the Court

must decide whether the three or the six

year statute of limitation applies to the

assessments made by defendant.

It is undisputed that the assessments

were made more than three but less than

six years after the returns were filed.

It is conceded that the value of the

property disclaimed by Dr. Bishop in

each of the years in question exceeded

in amount twenty-five per cent of the

total amount of gifts stated in the return.

The sole question presented is whether

the gifts represented by the disclaimers

should be taken into account in deter-

mining whether gifts of an amount in

excess of twenty-five per cent of the total

amount of gifts stated in the return have

been omitted from the gifts shown in the

returns. If such gifts were disclosed in

the return or in a statement attached

thereto in a manner adequate to apprise

the Secretary or his delegate of the na-

ture and amount of such gifts, the three

year statute applies, otherwise, the six

year statute applies, unless the informa-

tion received by the agent in processing

Decedent’s Estate Tax Return apprised

the Secretary or his delegate of the gifts

represented by the disclaimer in such

manner as to be legally acceptable in lieu

of actual disclosure on the returns or in

an attachment thereto.

It is conceded by plaintiff that no ref-

erence was made in either the 1961 or

the 1962 return, or in any attachment to

the same, to the disclaimers executed by

Dr. Bishop.

Section 6501(e) (2), Title 26 U.S.C.A.

(See footnote 8) provides in part “In

determining the items omitted from...

the total gifts, there shall not be taken

into account any item which is omitted

from ... the total gifts stated in the

return if such item is disclosed in the

return, or in a statement attached to the

return, in a manner adequate to apprise

the Secretary or his delegate of the na-

‘Prentice-Hall, Inc.—KFed. Tax

BISHOP v. U.S.

Cite as 26 AFTR 2d 70-5979

70-5981

ture and amount of such item”, (Empha-

sis supplied)

While conceding that the gifts repre-

sented by the disclaimers were not dis-

closed in the returns for the calendar

years 1961 and 1962 or in any statement

thereto, plaintiff asserts that defendant

was not prejudiced thereby or placed at

any disadvantage in the collection of the

taxes. Plaintiff bottoms her argument

on the assertion that tho agent, charged

with the responsibility of processing the

Decedent’s Estate Tax Return, acquired

full knowledge of the disclaimers; and,

after fully reviewing the matter, indi-

cated positive acceptance and approval

of the Gift and Estate Tax Returns as

filed. The record does not show that the

agent indicated positive acceptance and

approval of the Gift Tax Returns. The

record shows that the agent accepted

and approved the Estate Tax Return,

with a slight variation brought about

by revaluation of stocks. The question

of the validity or non-validity of the

disclaimers was not material to a deci-

sion as to the acceptance or rejection of

the Estate Tax Return. Whether the

defendant did or did not acquiesce in

the exccutor’s position in regard to the

disclaimers did not affect in any respect

the tax liability on the return.

The record reflects, as has been here-

inbefore detailed, that the agent knew

of the disclaimers and received copies

thereof during the period he was process-

ing the Estate Tax Return. In his

letter of December 30, 1963 to the attor-

ney for the estate the agent indicated

that since Dr. Bishop died in 1963, he

‘was going to research the matter further

and determine whether Dr. Bishop’s right

to disclaim or not disclaim his interest

in the jointly held stocks would affect

his estate tax liability, or whether or

not he incurred any gift tax Hability, if

the disclaiming of such jointly held

stocks was legally improper.

In the closing letter the director said

that “The surviving spouse under the

terms of the decedent’s will inherited

the entire estate and after disclaiming

stocks with a value of $82,888.25 still

received the maximum marital deduc-

tion”. It is interesting to note, also in

the closing letter the director said “The

decedent’s last will and testament and

the passing of the jointly held property

with the right of survivorship resulted

in a residue as such not existing”.

@ 147,483

COPY PRINTED CLOSE TO EDCE

—— SAVER LLM ROE bial LOREEN.

70-5982

It appears clear to the Court that de-

fendant did not at any time before mak-

ing the assessments precipitating this

action, come to a conclusion on the ques-

tion of whether the disclaimers executed

by Dr. Bishop constituted the transfer

of property by gift, thereby making the

transfer subject to the gif* tax.

Unless the information acquired in

the examination of the decedent’s Estate

Tax Return satisfies the requirements of

26 U.S.C.A. §6501(e)(2) with respect

to disclosure of the nature and amount

of each stock disclaimed, the six year

statute of limitation must govern. At

this point it is proper to note that the

Gift Tax Returns were examined and

processed by an agent different from the

one processing the Estate Tax Return.

If the statute is applicd as written,

plaintiff's contentions must fail. The

statute is not ambiguous. The language

used in the statute is plain, simple and

clear. The Court is not required to inter-

pret the statute as it needs no interpreta-

tion.

The record in this case reflects that

there was not a compliance with the

statute. Dr. Bishop, when he filed the

Gift Tax Return for 1961, and plaintiff,

when she filed the return for 1962 for

his estate, did not disclose the existence

of the disclaimers in the returns, or in

statements attached thereto. Thus should

the matter end.

The Court has not found, nor has

counsel cited, any reported case which

holds a contrary view. Plaintiff calls the

Court’s attention to Colony v. Commis-

sioner, 1958, 357 U.S. 28 [1 AFTR 2d

1894] 2 L ed 2d 1119; Phinney v. Cham-

bers, 5 Cir. 1968, 392 F.2d 680 [21 AFTR

2d 651]; Taylor v. United States, 5 Cir.

1969, 417 F.2d 991 [24 AFTR 2d 69-

5747], and Benderoff v. United States,

8 Cir. 1968, 398 F.2d 132 [22 AFTR 2d

5222].

In Colony the deficiencies were based

upon the Commissioner’s determination

that the taxpayer understated the gross

profits on sales of certain lots of land for

residential purposes as a result of hav-

ing overstated the “basis” of such lots

by erroneously including in their cost

certain unallowable items of develop-

ment expense. There was no claim that

the taxpayer had inaccurately reported

its gross receipts, or that the returns

gross income by 177.2% and 30.7%,

spectively, of the amounts

the taxable years 1946 and 1947. In

dition the Tax Court held that in th

itation provided in Section 275(c)

predecessor of 26 U.S.C.A. § 6501() (2)

‘was applicable. The critical language @

the statute involved in the case 1

“omits from gross income an amov

properly includible therein”. In di

ing the Commissioner's viewpoint

the draftsman’s use of the

“amount” (instcad of; for example,

suggest a concentration on the q

tive aspects of the error, that is,

or not gross income was understated

as much as twenty-five per cent,

court said:

“dims seein celiindhioniaaal

in reading the above-quoted phragm

one touches lightly on the wor

‘omits’ and bears down hard on ®

words ‘gross income,’ for where

cost item is overstated, as in the cas

before us, gross income is affected t

the same degree as when @ gross it

ceipt item of the same amount’ {

— omitted from ea tax "

cog the other hand, the —

viewpoint was that the Commission¢

reading fails to take full account of

word “omits”, which Congress

when it could have chosen another

such as “reduces” or “understates”, ¢

ther of which would have pointed a

nificantly in the Commissioner’s dine

tion. Relying on the ordinary and

definition of the word “omit” the

payer contended that the statute

limited to situations in which

receipts or accruals of income items

left out of the compilation of

items. The Court agreed with the

payer’s position. e

In reviewing the legislative hisbe

of the statute the Court concluded @

Congress was addressing itself to 't

Specific situation where a taxpayer t

tually omitted some income receipt

accrual in his gross income, and z

=2Led at 1122,

€ 147,483

PEALE ENE A INT IS EI

POOR COPY

ELOPLE REEDED NAN ESN ELEN ILE SA} LEE EINE

BISHOP v. U.S.

12-31-70

——

70-5983

Cite as 26 AFTR 2d 70-5070

more generally to errors in that computa-

tion arising from other causes. The

court finally said:

“We think that in enacting § 275(c)

Congress manifested no broader pur-

pose than to give the Commissioner

an additional two years to investigate

tax returns in cases where, because

of a taxpayer’s omission to report

some taxable item, the Commissioner

is at a special disadvantage in detect-

ing errors. In such instances the re-

turn on its face provides no clue to

the existence of the omitted item. On

the other hand, when, as here, the

understatement of a tax arises from

an error in reporting an item dis-

closed on the face of the return the

Commissioner is at no such disad-

vantage."

Thus, in Colony, the court made it

plain that the clue must appear on the

face of the return. The understatement

of the tax in Colony arose from an error

in reporting an item disclosed on the

face of the return. In such cases, the

court said the Commissioner was not at

@ special disadvantage in detecting the

error.

In Phinney the Fifth Circuit in dis-

cussing the sufficiency of language used

in a return to satisfy the requirements

of the statute that the information given

on the return should be disclosed in a

manner adequate to apprise the Com-

missioner of the nature of the item, said:

“We conclude that the enactment

of subsection (ii) as a part of section

6501(e)(1)(A) makes it apparent

that the six year statute is intended

to apply where there is either a com-

plete omission of an item of income

of the requisite amount or misstating

of the nature of an item of income

which places the ‘commissioner * * *

at a special disadvantage in

errors.’” (Emphasis supplied)&4

Thus, the Phinney court tells us that

the six year statute of limitations applies

in either of two situations. One situa-

tion is where there is a complete omission

of an item from a return, as is the case

here. The other ie where there is a mis-

statement on the return of the nature

of the item which places the Commission-

er at a special disadvantage in detecting

the error.

Benderoff involved the tax returns of

individual taxpayers who held stock in

a Subchapter “S” Corporation. The in-

dividual returns under the section “other

income” showed income from the tax

option corporation giving the name of

the corporation. The corporation filed a

corporate return, for the taxable period,

allocating all of the taxable income re.

ported by it to its shareholders. During

the taxable year, however, the corpora-

tion made a cash distribution to its stock-

holders of an additional amount which

was not reported by it as being taxable

to the stockholders. The Commissioner

claimed that this cash distribution con-

stituted taxable income to the taxpayers.

The taxpayers asserted that the distri.

bution constituted income upon which

taxes had already been paid, but which

had not been distributed. A balance

sheet was attached to the corporate re-

turn, which disclosed information from

which the Commissioner could have de-

termined that the taxpayers had omitted

the cash distributions from their indi-

vidual returns. The Commissioner made

deficiency assessments, but only after

three years from the date of filing of the

returns. The question presented was

whether or not the Commissioner was

given an adequate clue in the balance

shect that there had been a distribution

of sharcholder’s taxuble income. If such

& clue existed the three rather than the

eix yceur statute applicd.

In this connection the court said:

“We now arrive at the critical is-

sue which is whether the taxpayers’

returns, supplemented by the Form

1120-S return, adequately disclose the |

distribution of undistributed taxable

income,

* . * ‘« oT

The proper test thus appears to be

whether the return provides a clue

as to the omitted item,’'3s

s s Sd * s

“We hold that the returns of the

taxpayers, supplemented by the Form

1120-S corporate information return,

provides an adequate clue as to the

omitted income and that the three-

year period of limitations governs.’’%

#21 ed at 11%, 1125.

% 392 F.2d at 685,

bt A ete AS

COPY PRINTED CLOSE. TO EDCE

ARIPO SOT LOWE LEI TE Ls BOGE IB BLE Ste PY EE

70-5984

In Benderoff the individual returns

provided a clue to the Subchapter “S”’

Corporation, and the corporate return of

the latter provided the clue of the omitted

item. Here, the Gift Tax Returns do not

contain any clue which would direct an

examiner to the Estate Tax Return.

Benderoft is inappositec.

Taylor, supra, involves an individual

joint return of taxpayers who held stock

in a Subchapter “S” Corporation. Their

1961 return disclosed income derived

solely from wages. One of the taxpayers

owned twenty-five per cent of the stock

in a closely held corporation, which be-

came a Subchapter “S’ Corporation on

March 1, 1961. During the fiscal year

ending February 28, 1962, the corpora-

tion derived income of $100,000.00, and

that income was reported on its Sub-

chapter “S” information return for the

fiscal year ending February 28, 1962.

Distributions totalling $18,000.00 were

made in March and September, 1961 to

one of the taxpayers. Because of the tax-

payers mistaken belief that the distribu-

tions were not reportable as gross in-

come in 1961 they made no reference

thereto on their return for that year.

The Commissioner made a deficiency as-

sessment on such distributions on March

31, 1967, more than three years, but less

than six years, after the filing of the

return. The question thus presented was

whether the period within which the

Commissioner might assess a tax defi-

ciency was extended from three to five

years because of taxpayers’ failure to re-

port or adequately disclose an item of

gross income, admittedly taxuble in

1961, on their federal income tax return

for the year 1961. The court said:

“Thus we must determine whether

taxpayers made a disclosure of the

omitted income sufficiently adequate

to put the Government on notice of

the nature and amount of the omis-

sion.

As previously stated, taxpayers’

1961 tax return contained no refer-

ence to Carolyn Taylor’s income from

the Subchapter “S’” corporation.

Furthermore, there was no reference

made to the Subchapter “S” corpora-

tion in taxpayers’ individual return,

nor on any schedule contained therein

or any statement attached thercto.

BISHOP v. U.S.

Cite as 26 AFTR 2d 70-6970

Under these circumstances, the

ernment, by examination of

payers’ individual return, was gi

no indication of the possible existen¢

the nature, or the amount of

omitted item nor was it referred

any other source of such informati

This Court has long recognized thi

the extended period of limitations

plics when there is no disclosure ¢

an item of income on the face of

tax return. Foster’s Estate v.

missioner of Internal Revenue,

Cir. 1942, 131 F.2d 405. 4

. a e e S |

Since the Government in this cas

examined an individual income ta

return giving no suggestion or infel

ence that relevant information ma

have been contained elsewhere, {

cannot be seriously contended the

the ‘adequate disclosure’ referred t

in section 6501(e)(1)(A) (ii) wa

made. Therefore, the six-year pe

of limitations was applicable in

situation.’’37

It is clear after a study and analy

of the cases cited by plaintiff that ther

must be some clue on the face of th

return itself or in a statement attache

thereto, which is adequate to apprise th

Secretary or his delegate (the ager

charged with the responsibility of exam

ining the return) of the nature an

amount of the omitted item, if the thre

rather than the six year period of lim

tation applies. In the case sub judic

there is no clue of any nature on eitht

of the returns in question, nor in an

statement attached to either one of then

Consequently, the six year period of lim

tation applied to the returns and the a

sessments were, in the opinion of @

Court, timely made.

Conclusion

There is no genuine issue as to a

material fact in the case, and the d

fendant is entitled to a judgment ag

matter of law. Rule 56(c), F. R. Civ,

Plaintiff's Motion For A Summa

Judgment will be overruled and defen

ant’s Cross-Motion For A Summa

Judgment will be sustained.

An appropriate judgment will be ¢

tered by the Court.

*T 417 F.2d at 993, 994.

147,483

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Fc ELD ead do ec a a ee eR eee me

TERT EY SA RII LINE 008 OP VLEET DIESE IEEE ED ERE MG OE ELE BINGE SEAN DORAL ATED PE

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

VASSER BISHOP, as Executrix of

the Estate of David H. Bishop,

Deceased,

Plaintiff

Ve No. WC69-43-S

UNITED STATES OF AMERICA,

Defendant

FINAL JUDGMENT

Counts 1 and 2 in this action were

dismissed on the merits by an order

entered herein June 19, 1970, when the

Court sustained defendant's cross-motion

for summary judgment as to each of said

counts.

The parties herein through their

respective counsel filed with the court

on January 4, 1971, a stipulation wherein

the parties stipulated and agreed that

the contemplation of death issue in the

above entitled action be dismissed with

prejudice, each party to bear its own

costs with respect thereto, said stipu-

lation bearing date o1 December 22, 1970.

Plaintiff filed in this action on March

EMRE SOL GY IER EON TS Sere te

22, 1971, a request for admission of

facts and of genuineness of documents,

which request was served on defendant on

March 19, 1971.

Responding to said request, defen-

dant filed on April 22, 1971, its objec-

tion to the aforesaid request for admis-

sion of facts and genuineness of docu-

ments, and as a basis therefor stated

that all issues involved in the action

had theretofore been resolved by deci-

sion of the Court or by settlement and

agreement of the parties.

Plaintiff thereafter filed on

April 28, 1971, with the clerk a motion

in this action for an order adjudicating

that the facts and genuineness of the

documents be taken as established. The

Court has heretofore overruled the said

motion.

At the hearing on the motion plain-

tiff tendered to the Court a proposed

judgment to be entered which had been

approved as to form by counsel for

plaintiff and counsel for defendant.

The defendant objected to the entry of

the order at this time, since it was

tendered to counsel for the plaintiff

for approval and presentation to the

Court for entry along with the stipula-

tion hereinabove referred to. The defen-

dant has requested the Court to strike

the signature of defendant's attorney

on the proposed judgment whereby the said

attorney approved the judgment as to

a Ay t

Se meni - .

form, and the Court has stricken from

said proposed judgment the name of said

attorney.

The Court enters this order in lieu

of the proposed judgment tendered to the

Court.

After consideration of the status of

the action it is

ORDERED:

(1) That all issues herein have

been finally determined by the previous

order of the Court sustaining defendant's

cross-motion for a summary judgment as to

Counts 1 and 2, said order having been

entered on June 19, 1970, and amended to

allow the plaintiff to pursue an inter-

locutory appeal in this action on July 1,

1970, and by the stipulation filed by

the parties.

(2) That this action shall be and

the same hereby is finally dismissed on

the record herein.

This the 27th day of May, 1971.

Orma R. Smith

UNITED STATES DISTRICT JUDGE

APPENDIX C

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 71-2912 i

Summary Calendar*

VASSER BISHOP, as Executrix of the Estate of

David H. Bishop, Deceased,

Plaintiff-Appellant,

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Mississippi

(March 7, 1972)

Before THORNBERRY, COLEMAN and

INGRAHAM, Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.'

Bishop v. United States of America, N.D. Miss. 1971,

F. Supp. ——.

*Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Co. of New York, et al, 5th Cir. 1970, 431 F.2d 409, Part I.

1See NLRB v. Amalgamated Clothing Workers of America, 5th Cir.

1970, 430 F.2d 966.

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.

ae SERRE rea OE SS na ca i yee »% =

ee Oe ee ee ee

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1971

No. 71-2912

Summary Calendar

D. Ceo Docket No. we 69-43-S

VASSER BISHOP, as Executrix of the Estate

of David H. Bishop, Deceased,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant -Appellee.

Appeal from the United States District

Court for the Northern District of

Mississippi

Before THORNBERRY, COLEMAN and INGRAHAM,

Circuit Judges.

JUDGMENT

This cause came on to be heard on

the transcript of the record from the

United States District Court for the

Northern District of Mississippi, and was

taken under submission by the Court upon

Si a ea eB i Se he ? > - a ai

the record and briefs on file, pursuant

to Rule 18;

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

that the judgment of the said District

Court in this cause be, and the same is

hereby, affirmed;

It is further ordered that plaintiff-

appellant pay to defendant-appellee the

costs on appeal to be taxed by the Clerk

of this Court.

March 7, 1972

Issued as Mandate: May 4, 1972

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. $71-2912

VASSER BISHOP, as Executrix of the

Estate of David H. Bishop, Deceased,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant -Appellee.

Appeal from the United States District

Court for the Northern District of

Mississippi.

Before THORNBERRY, COLEMAN and INGRAHAM,

Circuit Judges.

BY THE COURT:

IT IS ORDERED that Appellant's

motion to remove the above cause from the

summary calendar and to permit oral argu-

ment is hereby Denied.

APPENDIX F

IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 71-2912

VASSER BISHOP, as Executrix of the Estate of

David H. Bishop, Deceased,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the |

Northern District of Mississippi

ON PETITION FOR REHEARING AND PETITION —

FOR REHEARING EN BANC

(Opinion Mar. 7, 1972, 5 Cir., 1972, F.2d —__).

(April 26, 1972)

Before THORNBERRY, COLEMAN and INGRAHAM,

Circuit Judges.

PER CURIAM: The Petition for Rehearing is DE-

NIED and no member of this panel nor Judge in regu-

lar active service on the Court having requested that

the Court be polled on rehearing en banc, (Rule 35

Federal Rules of Appellate Procedure; Local Fifth Cir-

cuit Rule 12) the Petition for Rehearing En Banc is

DENIED.

Adm, Office, U.S. Courts—Scofields’ Quality Printers, Inc. N. O. La.

CERTIFICATE OF SERVICE

This is to certify that three copies

of the above and foregoing Petition for

Writ of Certiorari have been served upon

the Defendant by placing the same, air

mail postage prepaid, in the United

States mail, addressed to:

Solicitor General of the United States

Department of Justice

Washington, D. C. 20530

This the 21st day of July, 1972.

7 ‘Remon & Gut Ne

Lomax B. Lamb, Jr.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.