# Petition for Writ of Certiorari — Bishop v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1054%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 409 U.S. 878 ## Text ‘Y A 3 Seurt, U FILE COPY| save con 0s a JUL 22 1972 MICHAEL RODAK, JR.,CLERK a IN THE Supreme Court of the United States OCTOBER TERM 1972 No. 72122 V 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 2 = 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 Be VES ii Executrix Paid 1966 Assessments 2° Reasons for Granting the Writ 23 I. 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 Ae 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 31 34 35 50 53 54 56 57 iv 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 25 27 27 33 26 32 26 26 26 28 Vv 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) 32 25 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 32 19 vi Other Authorities Cited 6 Moore, Federal Practice (2d ed. 1966) $56.13(3) 25 1 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 Ve 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 4 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” 5 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 si Prva 7 (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 8 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 9 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; .. .- %& %& & 10 §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 1l 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 12 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. He ¥ ay the 13 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. (c) Notice in writing shall be given to the parties or their counsel of the transfer of the case to the summary calendar. 4 POOR COPY Ress Sd Sani SH ted ci sits: Pete ee BERS ALERT 4 Cam 14 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 15 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. 23 POOR COPY 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 . 17 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 POOR COPY isc TAREE HL RD RDA SDF TABI PERE SIS NE RIE AEE Prliot Chane A TE SUR ew ® Says dacias 18 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) a 19 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 20 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 — | 21 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 | 22 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). 23 REASONS FOR GRANTING THE WRIT I. 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 24 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 25 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 a / 7 26 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 ti 27 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 28 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 30 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 31 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 32 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 33 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 —— 34 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. © 125.112(30). *, 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 . 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 é Fs : : aE 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 a NEO AM SENREE DP ORET NEL ALLIES BALE PREF ELL IIE PELE LIL IE COPY PRINTED CLOSE. TO EDGE 43 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- a S ie of > > not with the 4 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 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 @ 147,483 COPY PRINTED CLOSE TO EDCE | 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 he 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 46 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 48 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 POOR COPY 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 50 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 51 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 a Ay t Se meni - . 52 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 53 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 54 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 55 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 56 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. 57 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. 58 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1054%3A1. Public record. Not legal advice.