Transcript of Record — Magness v. Commissioner (No. 672)

Supreme Court brief1957

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UNITED STATES

COURT OF APPEALS

_ FIFTH CIRCUIT.

4, 4

No. 16.430

HAROLD BRANNON MAGNESS,

Petitioner,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

Petition for Review of Decision of The Tax Court of the

United States (District of Georgia).

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(ORIGINAL RECORD: RECEIVED DEC. 17/56.

a aie Sak ee eh ee heed ee

ns core koe ha id Ce

Exhibit (not marked)—Letter, Commissioner to

Harold Brannon Magness, dated 9/20/54,

| with Statement attached ................

Answey of Respondent to Petition ................

Transit a a ae

Colloquy between Court and Counsel ..........

Opening Statement on behalf of Petitioner by

et. Me: Sc baka wa deeans oe ea ae ewes

Opening Statement on behalf of Respondent by

Ein ere re reagan

Evidence for Petitioner:

Motion of Respondent for the exclusion of

other witnesses, to invoke the rule

"and Muliae thereon ..........°......

Testimony of Harold B. Magness ..........

; Robert G. Mayo ....; aden a

Findings of Fact and Opinion ...............--

Deecioloni” entered G/R/G6 . - ici cic cee reese

Petition for Review ..... pA ai eS gies ee yi

Assignment of Errors ...........-:---segeeeeeeees

Notice of Filing Petition for Review ......... SPN

Petitioner’s Praecipe for Record Ap: Lp eee os

Motion and Order of U.'S. Court of Appeals trans-

mitting Original Exhibits to Appellate Court.

a a a Les se ea es Eee

Clerk’s Certificate, The Tax. Court of the United

ee OPO Re e eee CEE Tee eres be.

DOCKET ENTRIES.

DOCKET No. 55503.

age HAROLD ‘BRANNON MAGNESS,

Oreos eA Petitioner,

Mec versus

con MISSIONER OF INTERNAL REVENUE,

a Respondent.

Appearances:

For Petitioner: Jas. W. Arnold, Esq., (Robt. L. Russell,

Jr.) | 2

1954 ots.

Dec. 8—Petition received end filed. Taxpayer notified.

Fee paid.

Dec. 9—Copy of petition served on Ger.eral Counsel.

1955

Feb. 4—Answer filed by General Counsel.

Feb. 4—Request for hearing in Atlanta, Ga. filed by

General Counsel.

Feb. 10—Notice issued placing proceeding on Atianta, Ga.

calendar. ‘ Service of. Answer and Request

made. , |

1956

Feb. 13—-Hearing wil April 9, 1956, Atlanta, Georgia.

Apr. 9 & 10—Hearing had before J udgé Rice on the merits,

‘Filed at hearing—(Entry of Appearence of

Robert L. Russell, Esq.) Briefs due siete

Replies due 6/26/56.

ths

1956

Apr. 20—Transcript of Hearing 4/9/56 filed.

Apr. 20—Transcript of Hearing 4/10/56 filed.

June 7--Motiorn for extension of time to 6/26/56 to file

brief, filed by Respondent. 6/11/56—Granted.

Served 6/12/56.

June 11—Brief filed by petitioner. 7/10/56—Served.

June 19—Joint motion to reopen record to receive the

attached Stipulation of facts, stipulation of

facts lodged, filed.

June 25—Motion of June i9, 1956, is Granted—Served

€/27/56.

June 26-—Motion for extension of time to 7/10/56 to file

orief, filed by Respondent. 6/27,/56-—-Granted.

Served 6/28/56.

July 9—Brief filed by Respondent. 7/10/56—Served.

Aug. 31—Findings ot Fact and Opinion filed, Judge Rice,

Decision will be entered for the Respondent.

Served 9/4/56.

Sept. 5—Decision entered, Judge Rice, Div. 12. Served

9/6/56.

Oct. 22—Moticn to fix amount of Bond at $341.00, filed

by Petitioner. Served 10/23/56.

Oct. 22—Order, fixing amount ot Bond at $475.00, entered.

Served 10/23/56.

Oct. 22—Bond ir the amount of $475.00 approved and

filed.

Oct. 23—Petition for Review by U. S. Court of Appeals

for the Fifth Circuit, with assignMients of

: error filed by petitioner.

Oct. 23—Proof of Service filed.

Oct. 23—Praecipe for Record, with proof of service

thereon, filed hy petitioner.

1956

Nov. 16—Certified copy of Order of Court of Appeals,

5th Circuit, directing that the original trars-

cript of testimony, in lieu of a Narrative

statement of evidence, be made a part of the

transcript of record, original exhibits to be

transmitted 10 days prior to hearing, filed.

PETITION.

Filed Dec. 8, 1954 g=

The Tax Court of the United States.

Harold Braniion Magness, Petitioner,

va. Docket No. 55503. |

ommissioner of Internal Revenue, Respondent.

Now comes the petitioner in the above entitled

cause, and within the time prescribed by law in such

cases and petitions this Hon. Court for a redetermi-

nation of the deficiency set forth by Respondent in

his notice of deficiency dated September 20th, 1954,

‘‘A-R-SN:JPH, Internal Revenue Service, Atlanta 3,

Georgia, a copy of said notice is hereto attached,

marked Exhibit ‘‘A’’ and made a part hereof. As a

basis of this proceeding, petitioner alleges as fol-

lows:

Petitioner is an individual, whose add:ess is, Route

4, Winder, Georgia, and the.return for the period

4 %

herein involved was filed wh the Collector of In-

ternal Revenue forthe District of Georgia.

The tax in controversy herein, is income tax for

the year 1952, in the amount of $341.00, all of which

is in dispute. |

The .determination of the tax set forth in the notic

ef deficiency: is based upon the following crrers:

. ‘

(a) Petitioner is a member of the Georgia State

Pacro] and was such in the year 1952, and as such

was an employee of the State of Georgia, subject to

the rules and regulations and laws of the State as

ae by the Legislature of the State of

Georgia creating said Georgia State Patrol as

amended from time to time up and until 1952. That

said Act creating said Patrol, was enacted by the

Legislature of Georgia in regular session in 1937

was approved and became: law March 19th, 1937, and_

known as “An Act to create A Department of Public.

Safety for Georgia’’.

(b) That Article 11, Section 1 of that Act provides:

“There is hereby created and established a Division

of the Denartment of, Public Safety to be known as

the Uniferm-Division, the members of which shall be

known and designated as the ‘‘Georgia State Patrol’.

(cy That Article 11. Section 11 of that Act pro-

vides: ‘“‘That the Commissioner of Public Safety with

the approval of the Department of Publig Safety, is

authorized to divide the State of Georgia into Dis-

tricts as may be necessary for the purpose of ef-

fectually patrolling the public roads and highways of

the State and counties thereof’. * * * And to-provide -

for ‘‘serving meals at such barracks or quarters and

fer the upkeep and maintenance of same, to employ

the necessary male cooks and servants who need not,

be members of the Uniform Division;’’ * * And

provided, ‘“‘when any officer or trooper is on duty

away/rom his District he shall be allowed |.is proper

expense for his meals and lodging”’

So that. each Officer or Trooper as such employee,

of the State, solely for the convenience of his em-

ployer (The State) and as. a necessary incident of

the proper performance of his duty, received his food

and lodging from his employer, the State of Georgia,

in. addition to his salary.

(d) That in 1951 the State of Georgia through its

Legislature amended the Act of 1937, ‘‘Acts 1951 page

635°’, and abandoned the maintenance and support of

the barracks by furnishing meals etc. and provided

‘in Section | of that Act (page 636) for a minimum

subsistence in additiion to the salaries of all Officers

and Troopers as follows: ‘‘Subsistence allowance

shalj not be less than four dollars per day for troopers

and officers; Said subsistence allowance is hereby

made mandatory in the sum of not less than four

($4.00) dollars per day and not more than tivé ($5.00)

dollars per day and shall be in addition to all salaries

and or compensation”.

(e) That the Commissioner with the approval of

the Department of Public Safety, was empowered to

issue rules, regulations and standards of cenduct and

deportment, inspections as to neatness of appearance,

cleanliness of uniforms, small arms, belts etc. includ-

ing room, linen, blankets and such other pcrapher-

nalia as used by officers ard troopers in their sleep-

ing quarters and neatness of the automobiles fur-

nished them. by the State. That said rules and regu-

lations of standards were issued and in force in 1952,

and all officers and troopers were required by said

rules to pay for and bear all the expense of laundry,

dry cleaning, hair cuts, shining of boots and shoes,

_care of the:leather belts, etc. washing of the auto-

mobiles etc., premiums on retirement fund, and

meals, out of the subsistence set up and allowed by

the 1951.Acts of said Legislature, all of which as a

necessary incident to the proper performance of the

duty required by the State of Georgia, employer of

petitioner and as a complete substitute for the older

and original plan where the State furnished all of

these in addition to the salary, and was so reearded

by the State cf Georgia and no withholding taxes

were ever deducted from this subsistence fund,

tharsseh t¢ urn’ fram th tart c

vsiUUgir it Wao irdm ene regular ny lary

({) That by reason of the foregoing averments,

Respondent erred, in computing petitioners net in-

‘come. by including therein. as gross income the

amount of subsistence ($1647.00) and adding it to the

regular salary of petitioner, thereby computing his

gross income as Three Thousand, Seven Hundred

‘Ninety ($3,799.50) nine & 50 100 Dollars, when. said

gross mcome should have been computed at $2,152.50.

It was error to fail to exclude from his gross income.

the amount of said subsistence and disallowing same

as such and treating same as gross income, and pe-

titioner avers, that said amount of ;subsistence was

properly treated by him in his income Jax return for

1952 and that his net income therein was properly

stated. |

The facts upon which petitioner relies as the basis

for this proceeding are as follows: ec

(1) ‘That petitioner was a trooper of the Georgia

State Patrol for the year 1952. — ~~"

(2) That as such trooper, he was required to re-

side at the barracks in Athens, Georgia day and night

during the vear 1952 while on duty and while he

makes his home with his mother 26 miles away at

Route 4, Winder, Georgia, he is subject to call at

anytime while away from the barracks and during

his off time and at his home.

(3) That his duties consisted of patroiling the area

of his, District’orPivision; that during the vear 1952

he waS8 on: duty for 24 hours each day, but his watch

or patrol time was mostly from 12 o’clock noon ‘til

12 o'clock midnight, and while on such duties he ate

four meais \each day, and wes required to pav for

them out) of the subsistence as a necessary incident

to the propes perfermance of his duty and solely for

the convenience of his employer, the State of Georgia,

- who had previously and originally f@tmished such ex

penses in ‘addition to his salary.

(4). That the subsistence herein, was not in any

way a reimbursement for expenses. Petitioner was

not required while on regular duty to make out, keep

a record of, or. ftle: any expense account for meals

or otherwise, but was furnished by checks semi-

monthly this subsistenc>, definite in amount, to de-

fray certain and definite expenses, as Set forth in

paragra ph * hereof in sub-sections (c), (d) and (e),

and was merely .a change in method of furnishing

petitioner his board, lodging, laundry; dry cleaning,

etc. by advancing to him cash in advance with which

he was charged to expend for these necessaries, def-

initely fixed by the State of Georgia, and solely for

the convenience of said State of Georgia and asa

necessary incident to the proper performance of his

duties for his said emplover. the State of Georgia.

- .

”

Wherefore, petit ner pra ays” ;

That this Hon. .C urt hear the proceedings filed

herein, and determine:

a ° at

(a) That Respondent erred in computing and ad-

ding petitioner’s subsistence’ allowance of $1,647.00 to

his gross income, :

(b) -’ That it be decermined by this Hon. Court, oo

“the gross income ol petitioner for the year 1952 wa

$2, 152. 50 — Sng ae

{c) That the amount $1,647.00 be held to be not

taxable income, and that there is no deficiency in in-

come tax of petitiorer for the year 1952.

(Sgd.) JAS. W. ARNOLD,

(Jas. W. Arnold),

Attorney for Petitioner,

' P.O. Box 508; *°

Athens, Georgia. |

(Sgd.) ROBT. L. RUSSELL, JR.,

(Robt. L. Russell, Jr.),

Attorney for Petitioner.

RUSSELL & RUSSELL,

Winder, Georgia.

OR a

Clarke County. | a nae

You, Harold Brannon Magness, do.swear, that you

‘ are the petitioner in the foregoing petition, that you

have read same and are familiar with the statements

contained therein and that said statements are true.

| ' (Sed.) HAROLD BRANNON

MAGNESS,

‘Harold Brannon Magness).

Sworn to and subscribed before me this December

7, 1954. : . ,

F (Sgd.) EDWIN FORTSON.

(Seal) . Netary Public. —

‘

District of Georgia

U.S. Treasury Department

Interna! Revenue Service

Chief, Audit Division

Room 618, 50 Whitehall St., S. W.

Atlanta 3, Georgia

Office Of

Director of Internals Revenue

In Replying Refer To:

A:R-SN: si a

Sep 20° 1954

Mr. Harold Brannon Magness

Route 4 q

Winder, Georgia

Dear Mr. Magness:

You are advised that the determination of your in-

come tax liability. for the taxable- year(s) ended De-

cember 31, 1952 discloses a deficiency or deficiencies

of $341.00 as. shown in the statemént attached.

In accordance with the provisions of existing inter-

nal revenue laws, notice is hereby given of the de-

ficiency or deficiencies mentioned.

Within 90.days from the_date of the mailing of this

letter vou may file a petition with The Tax Court of

the United States, at its principal address, Washing-

ton 4, D. C., for a redetermination of the deficiency.

In counting ‘the 90 days you may not exclude any day

unless the 90th day is a Saturday, Sunday,.or legal

holid-y in the District of Qolumbia in which event

that day is not counted as 90th day. Otherwise

Saturdays. Sundays, and legal holidays are to be

counted in computing the 90-day period.

Should you not desire to file a petition, you are re-

quested to execute the enclosed form and forward

if to the Distritt Director of Internal Revenue, Audit

Division, Room 618, 50 Whitehall Street, S.W., Atlanta

3, Georgia The signing and filing of this form will

expedite the closing of your return (x) by permitting ,

an early assessment of the deficiency or deficiencies,

and willsprevent the accumulation of interest, since

the interest period terminates 30 days after receipt

of the form, or on the date of assessment, or on the

dats of payment, whichever is the earlier.

Very truly yours,

T. COLEMAN ANDREWS,

Commissioner,

By (Signea) PAUL COBB,

District Diréctor of Interna!

Revenue.

ors . |

Enclosures:

Statement

Form 1276

Agreement Form . 9

A:R-SN:JPH |

Statement. oS

Mr. Haroid Byannon | Magness ° y

Route 4

Winder, Georgia

Tax Liability for the peg Year ascii December

- 1952.

Income Tax: , ._ Deficiency

1952 | | $341.00

In making this determination of your income {ax

liability, careful consideration has been given to the

report of examination mailed to you on September

15, 1954, and to letter from your attorney, Mr. James

W. Arnold, dated September 15, 1954, requesting is-

suance of statutory notice.

‘A copy of this letter and statement has been mailed

to your representative, Mr. James W. Arnold, Post

Office Box 508, Athens, Georgia, in accordance with

the Internal Revenue Service.

Taxable Year Ended December 31, 1952

Adjustments to Income

Adjusted gross income as disclosed by return.. $ 2,152.50

Unallowable deductions and additional incorne:

(a) Unreported income ................ 1,647.00

Adjusted gross income as corrected .......... $ 3.799.50

Explanatidn of Adjustments.

(a) It is held that the amount of $1,647.00 paid to

you by the State of Georgia, Department of Public

Safety in addition to the amount reported on your

a as ‘ A

a as POAMNnNanca an n a rinac fav tha tawalhla

retu? <a as compensation for serv ices ava valid tana

year ended December 31, 1952 constitutes taxable in-

come within the meaning of Section 22(a) of the In-

ternal Revenue Code. Ycur income has been in- .

creased accordingly.

©.

Taxable Year Ended December 31, 1952

Computation of Tax

a«

Adjusted gross income as corrected .......... $ 3,799.50

Tax ‘liability as computed from the tax table

at Supplement “T”’, based upon 1 exemp-

Mee etre ree oy ee are ere oe

Correct income tax liability .................. $ 640.00

Income tax liability as disclosed by return .... 299.00

RAORSCMOENCY OE GOCNID TAME oo oak gins coos Koos was $ 341.00 .

ANSWER.

(Title Omitted. )

Comes now the Commissioner of Internal Revenue,

by his attorney, R. P. Hertzog, Acting Chief Counsel,

Internal Pevenue Service, and for answer to the pe-

tition filed herein admits, alleges, avers and denies

as follows:

1. Admits the aliegations set forth in paragraph 1

of the petition.

2. Admits that the tax in controversy herein is in-

come tax for the vear 1952. Denies the remaining al-

legations set forth in paragraph 2 of the petition.

3. (a) to (fj) Denies the errors alleged in subpara-

graphs (a) to (f), inclusive, of paragraph 3 of the

petition.

4. (1) Admits the allegations set forth in subpara-

graph (1) of paragraph 4 of the petition.

4. (2) to (4) Denies the allegations set forth in

subparagraphs (2) to (4), inclusive, of paragraph 4

of the petition. | 7

5. Denies generally and specifically each and every

allegation set forth in the petition not hereinbefore

specifically admitted, qualified or denied.

6. Further answering the ‘petition, the respondent

alleges that the document which is attached to the

petition marked Exhibit ‘‘A’’ is not a true copy of

the statutory notice-ef deficiency which was mailed

to the petitioner on'September 20, 1954.

Wherefore, it is prayed that the deficiency deter-

mined by the respondent be in all respects approved.

(S.). R. P. HERTZOG, F.V.H.,

(R. P. Hertzog);

Acting Chief Counsel,

Internal Revenue Service.

Of Counsel: ;

WILLIAM H. LOEB,

Regional Counsel,

H. FENTON DAY,

Special Attorney,

Internal Revenue Service.

Peachtree-Seventh Building,

Atlanta, Georgia.

HFD:md 1-31-55. ‘ th 2

ot fA A

‘i FG

——

Filed Apr. 20, 1956.

“-

(Title Ornitted.)

Hearing At Atlanta, Georgia.

Date: April 9, 1956.

In the Tax Court of the United States.

Harold Brannon Magness, Petitioner,

vs. Docket Number 55503.

Commissioner of Internal Revenue, Respondent.

Courtroom,

United States Court of Appeals,

Atlanta, Georgia.

Monday, April 9, 1956.

The above-entitled matter came on for hearing, pur-

suant to notice to the parties, at 3:30 o’clock p.m.

Before: Honorable Stephen E. Rice, J., Presiding.

J. W. Arnold, Esq., R. L. Russell, Esq., Suite 503,

Southern Mutual Bldg., Athens. Georgia, ap-

‘pearing for the Petitioner.

Herman Wolff, Jr., Esq., Special Attorney, Bureau

of Internal Revenue, appearing for the Re-

spondent.

Proceedings.

€

The Clerk:

Docket Number 55503, Harold Brannon Magness.

Will you state your appearances, please?

Mr. Russell:

.R. L. Russell and J. W. Arnold.

May it please the Court, I have filed an entry of

appearance. My application to practice before this

Court has not yet been granted. It will be filed today,

sir.

The Court:

Very well.

Mr. Wolff: os

Herman Wolff, Jr., for the Respondent.

Mr. Arnold:

_ Now, if Your Honor please, we are ready to rTe-

spond to the subpoena duces tecum, but there is one

little amendment'] want in it, in the subpoena, and

that is it says here, ‘‘United States of America to

Colonel W. C. Dominy, Director of Public Safety, 959

East Confederate Avenue, Atlanta, Georgia. Now,

Colonel Dominy is only an official of the State of

Georgia and, of course, these records all belong to

the State of Georgia, and I just want that amend-

ment to state, ‘‘Colonel W. C. Dominy, Director, De-

partment of Public Safety for the State of Georgia.”

{ just want that added in there to clarify the record.

Mr. Wolff:

I have no objection Yeur Honor.

The Court:

All right, the record will so show.

Mr. Arnold: |

Mr. Magness, take the stand.

The Court: :

I would like Opening Statements first. gentlemen.

Mr. Arnold:

Oh, yes, I beg your pardon. Well, let me see, have

I got the burden here?

~The Court:

You have it.

Opening Statement on Behalf of the Petitioner By

Mr. Arnold.

Mr. Afnold:

This is a case where Mr Harold Brannon Magness

was a State Trooper, a member of the Georgia State

Patrol during the year 1952, and the State of Georgia

had divided, had given him a salary and, in addition,

had given him a subsistence, so much a month, pay-

able bimonthly, and the government came in and de-

termined that that subsistence paid bimonthly was a

part of his gross income and was subject to being

taxed, and we are opposing that. That is in. sub-

stance the whole case.

The Court:

You are relying on the reversai in the Saunders

case?

Mr. Arnold:

And we are relying on the Saunders case and -the

facts in this case to substantiate it.

The Court:

All right. Mr. Wolff?

Opening Statement on | Behalf of the Respondent By

Mr. Wolff.

Mr. Wolff:

_ Substantially, what Mr. Arnold has stated is cor-

rect, Your Honor. The case involved a deficiency in

_the amount of 3341 for the taxable year 1952. During

the year 1952, Harold Brannon Magness, the Petition-

er herein, was’ an employes and a member of the

Uniformed Division of the Georgia State Patrol, a part

of the Department of Public sane in om State of

Georgia. aged

During 1952, the Petitioner received basic pay-

mentc in the amount of $2, 159. 59 from the State of

Georgia. These basic payments were returned as in-

come by Patrolman Magness. 2

In addition to the $2,152.50 received by Patrolman

Magness, he also received payments of $4.50, or a

total of $1,647 during the year 1952. This $4.56 per

day was ‘paid to the patrolmen of the State of Georgia

when they were on duty or off ‘duty, on vacation or

otherwise. The sole issue presented is whether or not

these payments of $1.647 were includable in the in-

come of the Petitioner. %

In reading the petition, it is apparent that the Pe-

titioner is relying on the convenience of the Employer

Rule in stating that the payments were not included

in income. It is the position of the Respondent that

the payments, becausé of the form and’ manner in

which made, were included in income and should be

treated as an increment of income and not-as pay-

ments made for the convenience of the employer.

Of course, it is elementary that one of ‘the pur-

poses an individual has in seeking employment and

perforining the duties under the employment tontract

is the earning of a livelihood; and the empioyee must

have subsistence if he is to live and perform the

duties contemplated. Generally, too, it is a reason-

able assumption, the reasonable assumption would be

that the employee is dependent upon the subsistence,

on the consideration flowing from the employment

- contract, whether that subsistence be in the form of

money or in whatever form it may be.

Under such circumstances, it would seem that

monetary payments received by Patrolman Magness

in the case ac bar come within the meaning of the

term. “gross income’ and the treatment or remunera-

tion or compensation under the definition of ‘‘gross

income’* under Section 22 (a) of the Internal Revenue

Code. of 1939.

Respondent contends that for the purpose of re-

porting income and paying the tax thereon, this Pe-

_titioner should not be regarded in a light more favor-

able than other taxpayers who, under their contract

of employment, receive fixed compensation plus addi-

_ tional amounts and monetary allowances. In both in-

stances, the employee receives X dollars under the

contract of employment, whether or not that money,

or the amount received is denominated into salary or

salary plus allowances or salary plus subsistence. The _

catch phrase furnished for the convenience of the em-

ployer has often been adopied as a short-cut expres-

sion to describe subsistence in kind furnished tc an

employee where the tax result has veen favorable to

the employee. Such a statement such as furnished fr

the convenience of the employer is obviously an over-

simplification of tHe problem. The better and more

accurate statement of the reasofi for the exclusion

from the employee’s-income of the value of subsist-

ence furnished in kind is.perhaps that such value is

excluded where the subsistence is furnished by the

employer, not for the personal, convenience, comfort

or pleasure of the employee, bit simply because he

could not otherwise perform the services required

of him.

In other words, though there is an element of gain

to the employee in that he received subsistence in

kind which, otherwise, he would have to furnish or

supply for himself, he hag nothing which he could

take, appropriate, use and expend according to his

own dictates; rather, the ends of the employer's busi-

ness{dominated and controlled, just as in the furnish-

ing of a place to work or in ¢he supplying of tools and

inacninery with which to work.

However, where the employee is furnished cash,

this money may be expended in any fashion that the

employee sees fit. He can expend the entire $4.50 for

subsistence. He can expend a part of the $4.50 per

day for subsistence; or the $4.50 he receives per day

while he is on vacation, he can spend it for the otheg

personal needs on that vacation.

To extend the convenience of the Employer Rule to

the monetary payments received by the Petitioner in

the present case would be clearly improper. In this

“at

case, the employee's duties are of such a nature that

he would have furnished his own meals, and the

‘nishing of money to him for that purpose was for

ius OWN convenience awd not the convenience of the

employer. .

At this time, Your fionor, I would like to offer in

evidence, as Respondent's Exhibit A, the 1952 In-

come Tak Return of Harold Brannon Magness and,

also, the Information Return for the Calendar Year

1952, filed by the Department of Safety with respect

tw the $1,647 payment.

The Court:

Very well, it wiil be received in evidence.

(The documents above referred to were received in

evidence and marked Respondent's Exhibit A.)

Mr. Wolff:

At this time, I would like to request permission to

withdraw the original returns at-a later date and

substitute photostats.

The Court:

Very well, permission granted.

Whereupon, HAROLD BRANNON MAGNESS, calied

as a witness for and on behalf of the Petitioner, hav-

ing been first duly sworn, was examined and testified

as follows:

}

The Clerk:

Will you state your name and address, please?

The Witness:

Harold myannon Magness, Winder, Route 4.

‘Mr. Wolff: v

At this time, Yeur Honor, I. would like to. move for

the exc:usion of other witnesses, to invoke ‘the rule.

The Court: 5 >

. Why do you make that motion in a case like this? -

_ Mr. ‘Wolff: - ‘

Your Honor, in the preparation of this case, there

has been, a certain amounf of lack of ‘cooperation, I

think, in the furnishing of informat; n to the Gov-

‘ernment, and in view of that I feel that the testimony

«:Mr. Magness might:give might suggest ‘an answer to

~ sorne of the ‘other witnesses.

I will abide by the Court's wiskes in the matter.

~ Mr. itiaib

Now, if the Court please, 1 want to poe eee that 5

statement that there has been any negligence on the —

part of the officials of the Georgia State Patrol: in

operating with the Government, and we have some

ficials here and I think my brother is in error there.

There has heen no effor. “on the part—I know I have

— tried to cooperate and furnish the Government all the

information. in the wortd that I had, and I think he

did’ call up and thev told him to see their attorney,

and he ‘failed to see their attorney. .

. The Court:

All right, I am going’ to deny the. motion. I don’t

think this is the type of case where we should ex-

elude the witnesses.

Motion denied.

Direct Examination.

‘

By Mr. Arnold: a

Q. Now, your name is Harold B. Magness?

i 2 ae ©

@.. Where do you live, Mr. Magness?

A. I*live about approximately five miles north of

Winder 6ut on a farm.

Q. ‘Where were you stationed, at what post, in . the

year 1952?. .

A.° At Athens, Georgia. 3

Q. How far is that from your old home?.

-A, Approximatély 25 miles.

Q. Now, you were a member of the State Patrol.

in 1952?. ’

.A. Yes, sir. ,

Q. When did you first enter the State Patrol, Mus

Magness?

A. 1941, December, December ‘4th, I believe.

Q.- Are you active in the Patrol right now?

A. Iam on leave of absence.

Q. You are on leave of absence? |

: A. Yes;‘sir. ,

Q. Is it your intention to return to the Patrol duty?

A. Yes, sir. ;

Q.. What are you doing now? \

A. eli, we have a small farm at home, and no-

body’s“there but.my mother and a:other brother. My:

father is dead and the farm laid out last year,

practically, and _I got a leave cf absence to sow

down part of the farm “and get it in shape and get.

him started farming again.

Q. And you have been there attending to that? .

-A. Yes, sir. oe

Q. ,Do you make your home with your mother?

A. ¥en, ae

@ You are a bachelor, I believe?

A. Yes, sir.

@. You have never been married?

A. WO, air.

Q. Ali right, now, you haven’t been in the Patrol

regularly since 194i, haye you, Mr. Magness? °

A. No, sir; I got a leave of absence in 1942, mili-

tary jleave,-and { came back with the Patroi in, I

‘believe, September or 748.

- Q.* And you have been with the Patrol since?

A. Yes, si.

@. And you were located at Athens, at the Athens

Post, the entire year of ’52? -”

7 Ves, Sir.-

©. All right, Mr. Magness, how.long did . xou have

to enlist when you enlisted in = State Patrol, if you

enlisted? -

A. I believe four, years.

@. It was for four years when you first went in?

'A. When I ffrst went in—I don’t know as I know

just how Jong I was supposed to be with them.

Q. Well, can you just walk off?

A. No, sir,

Q. What would hapnen to you if you just walked

off without permission or anything?

A. i presume they would prosecute me.

Q. Wells do you know whether they would prose-

cute you or not?

Yes, sir; they would.

Do you know whether they could do it or not?

Yes, sir; they could.

They could do.it?

Yes, sir.

How do you get off?

7 OPOPr OP

' A. Well, on a leave of absence.

Q. I know, but how would you quit the State Patrol

if you wanted to quit?

- A. Well, you ask for a leave of absence and you

have got to get ‘it in writing through channels, wet

they call channels.

Q. And who passes on that? %

A. Well, the Colonel and Major and the, Captain,

Lieutenant of the District. It goes from your Captain

on to the Coionel.

@.@Q. That is the way it is done?

A. - Yes, sir.

@. Is the Colonel the Senate t ranking officer in the

Patrol? —

c.* -— sir.

&. He js called the Director?

A. . Yes? sir.

Q. Ail right, now, Mr. Magness, where did you

-reom when you were on patre] in Athens in ’52?

A. At the Patrol Barracks.',

Q. _How nfany men are.usually stationed, as a

rule, at one Post?

A. I believe there were six men stationed at

Athens.

Q@. How many different Posts have you served?

A. Well, I have been in Athens and Washington,

Toccoa and Gainesville.

@. Didn’t you serve at Cordele once?

“A. There was—I was at Perry when I first went

on. That is five. ee |

& Five Posts’ you have served at? *

A. Yes, air. 2

Q.. Now, Mr. Magness, I will hand you some

checks and ask you to identify them.

What are those for? What were they given for?

A. These checks were paid by the Department of

Safety to me for salary and subsistence.

Q.: Salary and subsistence?

A. Yes, sir.

Q. See if that is your indorSement on that check.

The Court:

Well, now, isn’t this a point where we can make an

oral stipulation for the record?

Mr. Arnold:

I think so.

Mr. Wolff: a

I think so, Your Honor. I have never seen them

before.

The Witness:

Yes, sir; that is my signature.

By Mr. Arnold:

Q. Well, I will ask you if the subsistence and the

salary is included in one check?

A. Yes, sire

Q. But they are marked?

A. Marked different. |

Q. Is ‘it marked ‘‘subsistence’’, one of them, and’

the other marked ‘‘salary’’?

A. Yes, sir.

Mr. Wolff: Peoce ;

I have no objection to the checks, Your Honor.

Pe a eer ro sect tit i

Mr. Arnold: |

Well, we can stipulate them, then.

The Court: 3

Just offer them in evidence and they will be re-

ceived in evidence.

Mr. Avnold:

Yes, sir. :

The Clerk:

They will be marked Exhibit 1.

(The checks above referred to were received in

evidence and marked Pe‘itioner’s Exhibit No. 1.)

By Mr. Arnold:

Q. Now, was that subsistence, Mr. Magness, was

there ever any taxes withheld by the State of Georgia

on those subsistence checks?

Mr. Wolff: =

Objection, Your Honor.

I think he wiil have to show first whether he knows

whether or not they were withheld.

Mr. Arnold:

Well, I reckon if he answers that, I will ask him

whether they had been.

The Court: ,

Do you know whether they had been? .

The Witness: :

To my knowledge, I don’t think they were. |

Mr. Arnold: * :

Well, I can prove it up by ‘somebody else.

By Mr. Arnold:

@. So far as you know, there never was?

A. No, sir. ,

Q. Now, Mr. Magness, I am going to give you

here and ask you what is this, tel] us what that is,

that document?

A. Well, that is a Station Blotter, or Daily Report.

There is a copy and an original made up each day

of each Trooper’s activitys what he done anc where

he was. It shows where he was on whatever day it

is.

Q. Now, you started up January lst, there; is

that it, there, or‘is it on the back?

A. That is the 3lst. Let us turn it over here. That

is January Ist, there.

Q. All right, now, I see there are some figures up

there at the top.

What do those represent?

A. They don’t list, the Trooper’s name. There is not’

room on these reports to write his name in. Each

Trooper has a number, and he appears on this Dauy

Repért or Blotter by number. z as

Q. Well, will yor™ give , the fourt your number © x

there? .

A.. Yes, sir; my number whs 65.

Q. Harold B. Magness, Number 65?

A. Yes, sir.

@. Will you give the Court the names of the Troop-

‘ers that bore the other numbers?

A. On January Ist, if was Trooper 137 and 65; that 2

137 was a Sergeant, Sergeant Floyd. -

' Q. Sergeant Floyd was Number 137?

A. Yes, sir.

Q. All right, give us the numbers, first.

A. Troopers 76 and 28 was Trooper Sanderd and

Trooper Strom. Trooper 199 was Corporal McCord,

and Trooper 90 was Trooper Stewart, and then Ex-

aminer Craig, he was Driver’s License Examiner, is-

sued drivers’ licenses.

Q. That appeared there on Januarv lst?

A. Yes, sir.

Q. Relate to us the activities of each Trooper and

yourself on that date.

A. Well, on that date, Sergeant Floyd and I were

on regular patrol. Do you want me to tell what. we

done?

Q. Yes.

A. We made seven arrests that day and we wrote

eleven warning tickets and we aided two travelers.

We run one patrol that day, traveled 187 miles, and

we put in a total number of hours, that was 10.

Q. The number of hours was 10?

A. Fea, wie. r

@. Now, that shows the total mileage of the auto-

mobile that you-all were driving that day?

A. Yes, sir.

Q. 189, you say?

AS ae: .

@. 187? /

A. Yes, sir. ,

Now. Mr. Magne: {s was there any certain time,

that is, hours, that Hi made that day? I mean,

that you mad each day? ;

A. No, sir; we were or duty 24 hours ‘a day.

Q. You were on duty 24 hours a day?

A. Yes, sir. ~

Q. There wasn’t any such thing as eight hours’ or

19 hours’ work? Then you were through?

A. No, sir; we were on duty 24 hours a day.

Q. You were on duty 24 hours a day?

A. Yes, sir.

Q. There wasn’t any such thing as eight hovrs’ or

10 hours’ work and then you were t&gough? |

A. No, sir.

~Q. Now, where would you eat, Mr. Magness?

_We will illustrate by saying, if you left the Post at

eight o’clock in the morning, where would you eat

for breakfast?

A. Well, we would eat out at some cafe or. restau-

rant that was on our assigned route, where there was

a telephone. If there was a telephone, we would call

in the Station by radio on the car and give the Sta-

tion the number of the telephone ‘and the place

where we were eating.

Q. Why would you do that?

A. Well, because if something came up that you

had to take gare of, they would know how to get in.

touch with you and where te contact you providing

you were signed off the air by the radio.

Now,-if it happened that you had to take a meal _

were there wasn’t a phone, then one Trooper would

sit in the car and listen to the radio while the other

Trooper ate; and then when he got through, the other

one that had just got through eating, he wouid re-

lieve him in the car and let- him go get his meal.

Q. Weli, would that Trooper that sat in the car,

would he often or ever patrol away from there: for

the |time being?

a at, eS

Q. What time did you figure upon an average that

it would take you to eat a meal?

A. Well, usually it would take about from three-

quarters of an hour to—thirty miMutes to three-quar-

ters of an hour. ;

Q. I see. ’

A. Some people eat faster than others.

Q. Now, you say when you went to eat, you

radioed the Station that you were driving up to

Jones’. Restaurant, we will say; is that correct?

A. ‘Yes, sir.

Q. And if Jones had a telephone, you gave that

number to the Station?

A. Yes, sir.

Q.. And they would know where you were all dur-

ing that, time? | |

A. Yes, sir. ! pe

Q. In the event that a wreck occurred in that

vicinity? | ~

A. Yes, sir.

@. . Now, let me ask you something: Suppose that

a wreck had occurred, would you have had ve

your meal there and gone to it?

Yes, sir.

Did that, ever actually ever happen to you?

Plenty of times.

And you left your meal?

Yes, sir. 7

All right what became of that meal, or the

expense of it?

A. Weill, I had to pay for it. I have lost plenty of

meals juSt on that account.

Q. Just on that account?

A. Yes, sir.

Q. Now, I will ask you if that record will show

that:you were on duty anywhere around 14 and 16

hours e day?

_A. Yes, sir; it shows the mumber of hours that

each Trooper—

Q. I mean. on patrol.

OPoOopoOoe

’ | 32

A. Yes, sir; it shows every hour that any Trooper

was on patrol] that was stationed at that Post.

Q. Let me ask you this: When you happened to be

on patrol for those long hours, how many limes.

would you eat a day? :

A. Well, sometimes I have eaten two times, and

sthere have bee times that I have eaten four times.

It all depended on how long you stayed out and how

iate you were at night. We usually tried to, if w

weren't tied up, to get three meals a day, but we

was hindered from -that somctimes. Ree

Q. Mr. Magness, you had to pay for those meals _.

yourself?» | | Peg

A. Yes, sir; paid for them out of subsistence.

@. Out of subsistence?

A. Yes, sir.

Q. I am going tc ask you this: In. 1952, was $4.50

a day enough to pay that subsistence?

A. No, sir; it wasn’t. —

Q. How do you know that?

A. Well, you had to eat at so many different places

and things were higher at places than they were at

others, and each time a bunch of Troopers get to-

gether. you always hear the men talking about that

they wasn’t getting enough, subsistence to eat on. £ ~—

hadn’t actually tested it out, so, in 1952, I decided I

would test mine out and see how I come along with it.

So. beginning in January of ’52, I kept my subsist-

ence entirely to itself to try it out to see. .

‘Q. You didn’t mingle it with your other monev?

A. No, sir. I kept my subsistence separate from

am other money that I might have had, but I hardly

ever had any money in my pocket except mv’ sub-

sistence, because, if I needed any additional money,

I had a bank account at my. bank at Winder and I

would write checks for that.

Let me ask you something: Do you drink?

A. No, sir.

Q. Do you smoke?

A. No, sir.

Q. Do you gamble?

“A. No, sir.

Q. Then, you didn’t have much to spend money

for except to eat, did you?

A. That is all.

Q. What are the rules and regulations about your

uniforms and your shoes or boots and your-teather

belts and pistol scabbards? a

‘A. Well, you have got to keep your leather all

shined. You have got to keep your brass shined, keép_

your clothes clean and neat. and pressed at all times, °

because you stand inspection every morning. |

Q. How often do you stand an inspection?

A. Every morning: by the Sergeant of the Raton.

and at least twice a week by the Lieutenant of your

Division.

Q@. Now, you have to bear the expense of all that

shining?

A. Ses, sir. :

Q. And laundering and the pressing of your uni-

forms and the cleaning of your uniforms?

——

A Van ease

4a. Z2vO, O41. >

Q. What about your bed linen?

A. The bed linen is furnished by the Sioiieds taesiiek

of Public Safety and you have got to keep it clean

yourself.

| Q@. Have it laundered?

A. Yes, sir; and your blankets, you keep them

dry-cleaned.

Q. What about your underwear?

A. You furnish your own underwear. The State

doesn’t furnish that.

| 34 a

What about keeping it washed and laundered?

You have to keep that done yourself.

You have to do that yourself?

Yes, sir. |

How often do you have a leave per month to

go home or anywhere you want to go?

A. Well, you get a day a week, regular pass days.

That is 24 hours. - "

Q. - That is 24 hours? \

OP OPO

A. Yes. on

Q. That is four days a month?

A. Yes, sir.

Q. Now, when you get that day, or when you got

that day, did you-usually go home?

Tage | Sees

Q. Mr. Magness, were you subject to call every

minute of that 24 hours?

A. Yes,.sir; I had to leave with the Station where

they could contact me in case they needed me.

Q. At any minute?

A. Yes, sir.

Q: Now, then, do you have any leave of absence

for vacation during the year?

A. You have 15 days.

Q. Fifteen days?

. Yes, sir.

Q. Now, during that time are you subject to call?

A. Yes, sir.

Q. Do you have to register your whereabouts with

the Station?

A. “F946, air.

Q. And they have got to know where you are at

all times during that time?

A. Yes, sir.

Q. Now, have you got, you Troopers, have you got

any Say-so or any discretion about where you will

35 ore

= i

eat, I mean when you will eat, or any ticeiibas about

these things at all?

A. o, sir; not if you are at work. If you are tied

up, of have got to eat on the route you are assigned

on iff/you are’out on regular patrol.

@. You have got t. eat on that route?

+ A. That is right. ’-

Q. You cannot go off to anette route?

A. . No, sir.

Q. And ycu have got to register where you. are

with the Station when you go to eat?

A. Yes, sir.

Q. What is the average distance from your Sta-

tion, what is the average distance from the Station

to the farthest point of patrol? |

A. Well, you mean the farthest point from the

Station?

Q. Yes, the farthest point from the Station; I arn

trying to get the area.

A. I would say 25 or 30 miles.

Q. Twenty-five or 30 miles?

A. . Fae, Oe

Q. Now, that would be 50 there and back; 60 if

it is 30, and 50 if it is 25?

A. Yes, sir.

Q. ‘The round trip?

A. Yes.

Q. Nor., would your patrol also include country

roads off from where—off from the highways and the

Ceiaty roads? The County roads in your area?

A. Yes, sir.

Q. Now, would you patrol in pairs or single?

A. Well, a lot of times we would patrol single in

the daytime, but mostly at night you would patrol

double, two men.

«3 36

Q. Patrol double? |

A Tee ee

Q. Was there any part of that year that you were

assigned to night patrol?

A. Yes, sir. * ;

Q. Do you remember about how much of that year

that you were assigned to-night patrol?

A. I sure don’t. We usually were on patrol every

night except when you were°oftf;

Q. Now, let me ask you this: You are allowed four:

days a month, I believe? te

A. Yes, sir..+

Q. Are you allowed any time after the 15th “ey of

December of any year? :

A. No, sir.

Q. After the 15th day of December you are not

allowed any. time off?

A. No, sir, until after apout the 5th of January,

the 5th of January cr beyond the 5th.

Q. I will ask you this: Are you alloved a day or”

two days or any amount-of*time extra after Christ-

mit’. chat you can make it up?

A. Well, yqu would lose two days in December.

You couldn’t take a day after the 15th. Where there

are six me or more in the Station, they try to crowd —

the two days in by the 15th and then you can make

those days up after, I would say, after January 5th,

after the holidays were over you cou'd make those. *

days up.

Q. That would be two davs extra?

A. That is right.

*) For instance, in Janvar v - vot had four days and

in this case you would take five?

A. Yes, sir. eee

Q. And you would make them up?

% 37

A. Yes, sir. :

Q. And that would average four days a month per

year? ee

A. Yes, sir-. 7

Q. Did you take more than that in °52?

A. NO, sir. 3 rs

Q. Have you looked over those records t] by

A. Yes, sir. 7

Q. Did you take more than your 15 days in °52°?

A. No, sir.

Q. Now, what was the rule regarding at night

when you got back off of duty, off of your patrol?

We'll say it was eight o’clack. What wouid you: do

"d come in and go to bed after I made

up ‘what we call our Form 10, maybe set around and

breaine a little bit before we went to bed.

A lot of times it weuld be late at night when we

would come in, and the weather would be cold or it

might be raining or ,something, and we might get

together and have an extra meal or something like

that,,be hungry, be ovt, working a wreck and come

- in, but we would go to bed there at the Station.

Q. But you stayed in the Barracks?.

A. That is right.

Q. That was the rules and regulations, ‘was it?

A. Yes, sir: that is correct.

Q. And the passes that yOu were entitled to was

the only time that you left there? ©. “

A. That is right.

Q. At other times outside of that you were right

there in the Barracks?

A. Yes, sir. |

Q. Does that record there show that?

A. Fes, sir; it shows the days that you were off

and it shows the days that you were on cuty.

@. You have gone through that record ?--

Mr. Wolff:

Your Honor, on some of these questions, Petition-

er’s Counsel is @ little leading. . 7 ;

Mr. Arnold: Soea oa

I beg your pardon. I will try not td lead him.

By Mr. Arnold: |

@. You have gone plumb through that. record

there, haven’t you?

A. Yes, sir. I guess I helped make bes part of them.

{ don’t know.

Is that distributed out among the men?

Yes, sir. A man gets assigned to the office and

radio just like he does on regular patrol.

Q... a see. 3

a” ‘Usually, when you get an assignment in the

office, you are on duty in the morning at eight o’clock

and you stay on that radio and desk ners: until the

last man comes in at night. — |

. Q. Well, suppose a man isf asstgned some - ‘special

Q. Did you ever do any radio work in the office? —

A. Yes, sir. |

Q. And desk work?

A: Yee. sir.

duty, . Magness, away from his Post; does that.

occur?

A. Yes, sir.

Q. Will that record show it?

A. Yes, sir; it sure will. ” es

Q. Were you ever assigned any special duty away eS

from the Post in ‘52? ak

A. I sure was. ;

Q. Where was it? — :

A. I had an assignment in Elberton, Georgia.

Q*TNow, do you remember how many days?

A. No, ‘ee I don’t. I could check this thing and

tell you. |

Q. That) Fecord weuld show that?-- ©“ -°. “—t:

tir

A. Yes,\sir; and-I believe in ‘52, I was assigned ~

another detail, ! believe it was at Columbus. They

‘were having a storm down there-and I went down

there for, I don’t know, two or three’ days. It will

s.0w it on this Blotter.

Q. That record there would show it?

A. ~¥es, sir.

Q. Were you ever assigned to the Southeastern

Fair up-here?

A. Yes, sir, 1 was, but I don’t recall whevher it

was.in 52 cr not; it, could have been.

Q. Well, I will ask you this: On these special as-

signments, how did you sleep and how did you eat?

Did you have to. pay for your re quatters out

of your subsistence?

A. No, sir, the place that we slept, we were as-

signed to those places. Now, how they were paid for,

I don’t know, but our subsistence, we had to eat on

that..Our mea's weren’t furnished; we had to furnish

our meals. , |

Q. You ate your own meals out of your subsist-

ence? 3

A. That is right.

Q. . And where you roomed, your sleeping quarters,

they were assigned, to you and that js all you know

about it? m, of”

» That is right.

And you don’t know who paid for that?

No, sir. - |

Were you in the Service, Mr. Magness,. before

the subsistence was granted per_ moth?

, a Se ae. |

Q. You are not familiar with the plan they had in

those days? :

ae . -

A. No, sir; 1 went with the Patrol in 1941, De-

cember. i

&. Now, Mr. Magness, when you were off on your

regular pass days, four a month, where did you eat?

A. I ate at home.

Q. You ate at your home?

A. Yes, sir; that is where I went. I had done work

‘each time when I got off, I worked there on the farm.

> OP OD

Q. You werked there on the farm and you aie

there?

A. Yes. My daddy was dead and my mother was

there and I helped.

Q. And you didn’t spend any of your subsistence

for thos: meals?

A. No, sir. ru ‘

>. Now. when you were on your 15- day pass—

What does that record show about your pass? You

said you had looked at it. ~

A. Well, you mean my “day a week off?

Q. No, no. ;

A. My 15 davs?

Q. Your annual pass.

A. It shows I was off on annual leave.

Q. What does it give? Do you recall? ‘ae

A. The days.

> i Yes.

A. I believe I taken seven at one ‘time and eight

at another. Made it 15; you could split it. ..

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41 ; }

Q. Don’t get them mixed up.

A. This is January.

Q. Now, while you were off those days, did you

spend any of your subsistence money?

A. \No,-sir. 7

Q. Your subsistence money was spent entirely for

subsistence, then, while you were actually patrolling?

A. That is correct. | 4

Q. And you say, I believe, you slept in the Bar-

racks every | night?

A. Yes, sir.

Q. And the other men slept there, too? |

A. Yes, sir. That was the rules and regulations,

yeu had to stay there.

Q. Now, I will ask you if at every Post you

served if that w&sn’t the rules and regulations.

A. Yes, sir.

Q. ‘And you have served at five separate Posts in

the State?

A. Yes, sir; that is right. |

Q. Did you have to apply. in writing for your an-

nual leave?

A. Yes, sir.

Q. Did you have to do the same thing for your pass

on your monthly leaves? | ‘

A. No, sir; you didn’t have to wriie-in for that.

Each man was entitled to a day, and it was granted

to him by the Department, and the — of the

Station handled that. — "

Q. Well, what I mean to ask .you is this:—If : 2

make myself clear—Suppose you ask off tomorrow

and it didn’t suit the Sergeant in regulating his af-

fairs. He would and could deny you?

‘A. Yes, sir; I have done it; been denied a lot of

timgs.

—

2 ~~"

Y Ooi

Q. It had to be done in accordance with the Com-

mander of the Post?

A. Yes, sir.

Q@. And he was the Sergeant?

A. Yes, sir.

'Q. Were you ever ordered, Mr. Magness, just

instantaneously that way, before you had ‘any ngtice

of it, to report to some place arrays > ?

ss Y $

A. Yes, sir. | eit : ,

Q. And you had no preparation of your —

A. No, sir.

Q. ‘And youavent?

A. That is right; yes, sir. |

Q.- You had gio other recourse but go, did you?

A. No, sir.

Q. Mr. Magness,-did you have any discretion or

any control whatever over where you patrolled any.

day? |

A. No, sir..The sergeant of the Statien made up a

Duty. Roster. .

- Q. Made what?

A. Made what they called the Duty Roster. That

showed who was to work and where they would work.

what, car they would work in, and so forth.

Q. In other words, you didn’t use the same patrol

area the same day?

No, sir.

I mean for two days or three days?

Well, you might—You—

You might do it and das might not?

That is right.

It is entitely: what the Sergeant directed?

Tnat is right.

Did you knew from ony to day what patrols you

would have?.. :

\: “s

CrPOrPoOPor

cate

A. After coming in from patrol, like today’s pa-

trol, you come in, whatever time you come in in the

night and he would have the Duty Roster made up.

He\had a Board there to put it on, and the Daily

Dut x Roster was put up there and you couid look on

- that Duty Roster and tell what route. you. was on the

- next day, or what your work was. —

2 Q. And what. time, it would tell what time for you

. @eotT << / .

-A. ¥es, sir. | wig

Q. Let me ask you tnis, Mr. Magness: Was such

an order as assigning you or any other Patrolman

to a wreck, detail— —

A, Yes, sir; after the last car would come in,

49 bipedal aeled! seg Sa Soke

9 FS UPA eh eh Sates; 2h hae

| from the last patrol at-night, there would be Troopers

4 assigned to a Call Duty, and if you got a wreck or

+ any kind of call during the night, whoever was on

~~ call, then they would get that assignment to go an-

- swer it. ~ a

2 Now, if they were off on a call and tied up and

+ another call came in, then some other man or some

_ other Troopers-would have to go and catch that one.

4 Q. Now, if you were on a wreck call—

You are assigned, as I understand it, on a. duty

roster to wreck calls?

A. Yes, sir.

Q. And even if you were in the bed during the

night and a wreck occurred and it was radioed in

there, you would have to get up and go to it?

A. Yes, sir; if you were on call; yes, sir.

Q:. Or whoever was on that wreck cali?

%.. ‘A. Yes, sir, he would have to answer it.

: Q@. He would have to answer it?

A™Yes, sir.

Q@. Have you ever had to work as much as a day

and 4 night on one patrol?

| 5 J

ne BH ett,

Se Vitel frm epi Beste.

“A

Well, I worked as much as 16 and i8 hours.

On one patrol?

Yes, sir.

That would be‘when seme wreck had occurred?

Yes, sir; as a rule.

As a rule? —

Probably; |yes, sir.

Were your beds assigned to you, too?

Yes, sir; they had beds in the Barracks and

then you would have a bed assigned to you, and you

would probably change sometime. Maybe change

from One room to another with some other Trooper

if you didn’t like the room you was in, but you did

have a bed assigned to you.

Q. Was there any one particular car assigned to

you? +s -

A. No more than just going out on patrol.

When you went out on patrol, this car was assigned

to whatever Troopers was in the car. The Sergeant

of the Station usually assigned the car to one Tréoper,

and some Stations that I worked at, they would as-

Sign them to two Troopers together, and they would

be responsible for that car and have to keep it up

and see that it was greased and the mechanical parts

kept in shape and be ready to go at all times.

Q. Now, did ‘you or not make your income tax fre-

turns on your salaries?

POoOPrOPOrOpP

A. Yes, sir.

Q. Made those every year?

A. Yes, sir.

Q. But did not return any ‘axes for your subsis-

- tence?

A. No, sir.

Q. Do you know why you didn’t do that?

. ep 8 Poy aplerys & iacipes Ne Bo bees

dae, fe tA Hey Cae, ape oo hin

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Ce oe Pah) | COR Se Pen pe eee deel! Coe ee ammlme LY

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A. Well, the income tax man, I believe, was Mr.

Allen at that ime, and it was a rule that was handed

down to him that subsistence wasn’t taxable.

Mr. Wolff:

Objection, Your Honor, on the grounds that there

ig no showing how the Petitioner ever came of this

knowledge:or whether any such ruling was’ ever is-

sued.

The Court:

That is not binding on the Commission anyhow, not,

on this Court. No agent can bind the Commission, so

it is not going to hurt your case.

Mr. Wolff:

I withdraw my objection. a

By Mr. Arnold:

Q. Now, can you identify all of those, Mr. Mag-

ness, as being the only official records that went out

of that Post of your daily activities, of each Trooper

for 1952? |

A. Yes, sir; the original was sent to Atianta, up

here to Headquarters. The duplicate was kept at the

Station. 7

Q. And that is the duplicate copy?

A. That is right; that is correct.

Q. And that is the only official record that goes

out to the Post of the daily activities of the Troopers,

goes out of the Post? |

A. That is right. It is made up each day along with

the activity that you get during the day. What I mean

by the activity would be the warning tickets you is-

Sue. the arrest tickets that you make, the arrests

46 °

that you might work; you send this report in to

Atlanta, the original, the originai and one ccpy of the

Wreck Reports that you might work that day.

Q. I want to ask you about that. right there. If you

worked a wreck that day, would you make a separate

report on that?

A. You had a Wreck Report form that yor filled

out. Yes, sir, it is separate to this. This form is made

up in a—You put the location on it. You put the num-

ber of the highway or the name of the road that the

accident occurred on, and the description of the auto-

mobiles that might have been involved or that was

involved, and the injury that might have occurred;

and then you draw a diagram of that accident on that

accident report, and then there is a place for the re-

marks, and you write there what happened or what

in your opinion happened. °

Q. I will ask you if that matter which you just

described there, if that isn’t, you do write something

privately there; that is for your superiors to see,

isn’t it?

A. Yes, sir.

Q. That is net fer the public?

A. No, sir.

Q. That itself mentions the wreck?

A. Yes, sir.

@. But that is all that does?

A. Yes, sir.

Q. You estimate the damage, too, don’t you?

A. Yes, sir.

Q. And you also put on there those private re-

marks, who you think is to lame, don’t you?

A. Yes, sir; what vehicle.

Q. But that only goes to vour superior officers?

A. That is right.

Mr. Arnoid:

I believe he is with you.

. — Examination.

By Mr. Wolff:

Q. How far was your patro! Station from Athens

in 1952?

A. The same as it is now; I would say about zo

miles, 26, something like that. I never did measure it.

Q. Did you state you were on military leave from

1942 to 1948?

A. I asked for leave of absence; yes, sir; getting

military leave to go to the Army in 1942. |

Q. When were you discharged from the Army?

A. = never did have to go to the Army; I was re-

jected at Fort Mac—Fort McPherson.

Q. And you came back. in as a Trooper in 1948?

A. Yes, sir.

Q. You were on military leave from 1942 to 1948?

A. Yes, sir.

Q. But you weren’t in the Army?

A. No, sir. |

Q. Or the Armed Services?

A. No, sir.

Q. Were you required to room in the Barracks,

Mr. Magness?

A. Yes, sir; that was the rules and regulations of

the Department.

Q. If you were married, would you be required to ~

live in the Barracks? Pe eee,

A. Yes, sir; that is the rules and regulations.

Q. You read there from January Ist, the Daily

Report Form 11, that you were on patrol for nine

hours. What did you do. for example, when you came

off patrol, Mr. Magness? ;

A. I believe it was 10 hours.

Q. Ten hours, then.

A. When I came in from patrol, I would make up

what we call the Form 10, pencil it out. Then, after I

got that penciled out and didn’t want to go to bed, I

would sit around and play checkers and read the

paper.

Q. Could you leave the Station if you wanted to?

A. Yes, sir; you could leave, but you would have

to let them know where they could contact you.

Could you go to the movies if you wanted to?

A\ Yes.

Q. \You weren’t required to stay in the Barracks

at all times then?

A. You had to be where you could be contacted in

case you were needed.

Q. Do you know how many times in 1952 you had

to leave a meal and answer a Call?

A. I sure don't.

Q. You stated that you kept a record of your sub-

sistence received during 1952.

Did you keep any notations of the amount of sub-

sistence spent?

A. No, sir; the only way I kept that. TI kept mv

subsistence in a pocket to itself. and I ate out of that.

and I only used it for subsistence for the purpose of

eating, and if I needed any other morey to pay my

laundry, my dry cleaning, or what have you, I wrote ~

a check, and I paid those bills by check.

Q. Are the uniforms furnished by the State De-

partment of Safety?

A. Yes, sir. 4

Q. In 1952, while on your vacation, were you called

off your vacation to report to duty?

A. No, sir.

A. On any of your days off, were you ever called

in 1952 to report back to duty?

A. I don’t believe J was.

Q. Ordinarily, would you be?

A. Well, it does happen.

Q. How many routes are covered by your Athens

Station? |

A. They had it divided into two routes, A and B.

@. Did any of those, go by Winder?

A. Yes, sir; went into Winder. Barrow County was

a split County between the Athens Post .and the

Gainesville Post.

Q. If you happened to be at meal time around

your mother’s house, would you stop and eat there?

No, sir.

Did your mother have a telephone?

In °52?

Yes.

No.

What was this day off? Was that one day a

week or four days a month?

A. One day a week and four days a month. That

is the way we got it. We taken it one day a week,

but you couldn’t get but four days a month, 48 days

a year, pass days.

Q. You stated that the wrecks were summarized

on Form 11. There was a separate report, is that

‘what it is?

A. Yes, this is a Form 11 here.

Q. And then Form 11, it mentioned the wrecks on

there?

A. Yes.

Q. The number of miles devoted toe the wreck?

A. Yes, it has got a place that you list them. !

can find one, if you would like for me to.

OP OPO>

50 .

Right hege, on January 22nd, ‘Corporal McCord and

I were on patrol. We worked two wrecks that day.

We workec two accidents, and we was four hours on

‘those two aecidents. |

Do you want me to give you the rest of the activity

of that day? <

:@ Yes. * !

A. We made two arrests. We traveled 109 miles

and was out on the read eight hours.

.Q That is including the time that you were at the

wreck? ° '

a Eight hours on patrol and tour hours on the.

_ wrecks would be 12 total hours. Fight and four is 12.

“f

;

It would be 12 hours total hours’ that we were on |

duty that day.

Q. Were you paid an additional atiiount of subsis-

. teKce on detail? |

A. 3, oF... *

Q. What - sort of shifts did you-all « ‘operate in the

Barracks or at this Station? ;

A. What was that question?

Q. What ‘sort of shifts did you operate on?

Did you have various shifts?

A. We went out a lot of times. in the early morn-

_ing, but most of thé time we would go out at one

fe) "clock in the afternoon and work until around mid-

night, until the traffic slowed down, and there wasn’t

tpo much traffic out on the road, and then we would

come inj =

_ Q.. Getting back to the subsistence. payments. you

kept no records, I take it? ;

| @

You said you tooF money out of your Nook et; you~

kept nc record of your subsistence pe¥ihents at all?

A. No more. than keeping my subsistence. I would

get my check cashed and I would take my subsis-

' tence out, of the check, deduct it ,from the total

amount an@ deposit my salary in the bank and take

« my subsistence and keep it in my pocket’ for eating

purposes. That is the only record I kept.

Q, Was it customary for the restaurant operators

not to charge vou for the meals that you ate?

A. No, sir; we paid for all of our meals.

Q. Did any of the restaurant operators not charge

ha Oe Seman he

ATL CERES FI I A

- you for a meal?

A. Never did give me none. :

_ *@Q. Did the State ever furnish you any meals?

ae A. No, sir. anes =

oe You. always / receivéd ‘subsistence payments

from them?

A. That iss right.

Q. Does the State make any adjustment. to your

subsistence payments to include an allowance only

for meals that you eat. while on duty?

| A. How-was th: t question?

Q. Are you paid a subsistence on the days that

‘you are off, that you do not work? .

A. Yes, sir; we get our subsistence_ regularly in

-our check every month. You get two checks a month.

Q. Do, you get that subsistence while you are on

vac iun, too?

NS RELY Ey ORS DEE IIE Say ee See ane

4 =

A OD SALE OT Oe oe nn ee) PEPER SRS ee OPE!

A. Yes, sir. “D> st me

Q: _Are you iequired to eat at a certs. time?

oe eS ~

~Q. You are required.to eat in a certain restaurant

or certain restaurants, are you?

A. No, sir.

; Q. Who pays your medical expenses, including

_ doctor bills and hospitalization?

_ A. J always paid mine. You have to pay your own.

: Q. Does the State furnish you~ automobile for pa-

_ trol purposes? ~ Siete ai

ee en

Ee a ee ee OL eee SONS Te Py Eee.

A. You. air.

Q. How is it that you came to be assigned to this

Station in Athens? os /

A. Well, I was stationed at Washington, Georgia,

and I got transferred to Toccoa and stayed at 'Faccoa

about three months, I believe it was, and I consu_ .ed

and talked with the’ Colonel and asked- him about

getting assigned or transferred to Athens, and after

a period of about three months, he had an opening,

and he transferred me dwn to Athens. :

Q. Why is that, so you could be close to home?

A. No.e 3

Q. Was the subsistence allowance greater to a

Corporai than to a Private? _

A. No, sir; it is all the same, Sergeant, Corporal.

Q. Did the Colonel receive the same?

A. I don’}&know about the Colonel. .

Q. All of them in the “Station/ received the same,

at any rate? | |

A. That is right; yes, sir. 3

-Q. When you were appointed, did you undergo any

special training? /

A. Yes, sir. U

Q. For how long? dj y

A. Six weeks. I believe it was six, five or Six.

Q. If your patrol reute took you by Your house

around meai time, could vou eat at home?

A. I never did.

Q. Could you have”

A. i kould have, I imagine, but T didn't. ?

Q. I Helieve you stated vou had prepared some of

these Form 11’> yourself,

A. I said I might have. I have no way of identify-

ing that ‘IT did, because fhe Sergeant et the Stacioa

signed them. I could look through them to see if I

> | ; Vs

~ ae

. |

wes assigned to the office that day and if I was, I

probably made the report of that omhasihiass day.

Q. All right.

Will you take the back of that one sheet there and

explain what is meant by “radio operator hours”?

A. Yes, sir. That \‘radio operator hours’’ shows

how many hours you operated the radio in the Station.

We had a radio there in the Station and you could

keep in contact with the cars, or if you couldn’t reach

Atlanta by radio, ‘then you could through one .of the

other closer stations that could contact Atlanta.

Q. What is meant by “‘office and reserves—

hours” ? i ,

A. On this report I am holdihe here, Office and

Reserves, Trooper 199, who was the Cerporal at that

time, McCord, he got office and reserves here; radio

operator hours, six hours, office and reserve hours, -.

eight. He had 14 hours in all, and he taken credit for

radio operator hours of six. Six of these he gave

credit for operating the radio. And for his office work,

making up your reports and other things, eight hours

for that, That gave him a total of 14. te

Q. Was that answering the phone and filling out

forms, and so forth, the eight hours?

A. Making out reports, yes; anything that was to

be handled there in the office by: him when he was

assigned to the office. |

Q. What is meant by the follow ing line, ‘Detached

Service Date’.? _ !

A. That is just like when I went to Elberton on

that detail there. They counted that’ detached service.

id that mean for the 24-hour period? pe

Yes. ae

‘That meant for-24 hvurs?

That is right.

> O Po

Mr. Wolff: o

No further questions, Your Honor.

Mr. Arnold: 1 d

We tender in evidence that exhibit. I believe that is

already admitted, those subpoenas.

The Court:

Very well, they are received.

Are there any further questions of this witness?

Mr. Arnold: . : ;

I believe not. Your Honor.

Wait, a ininute. ¢

The Clerk:

That will be received ‘as Exhibit 2.

(The document’ above-referred to -was received ‘in

evidence and marked Petitioner s Exhibit No. 2 )

The Court:

You had better mark these spearately) .

The Clerk:

Then,\Exhibits 2 through 13 are received.

(The documents above-zeferred to were received in

evidence and marked Petitioner’s Exhibits Nos. 2

through 13. i } a

| —

The Court: | tens

-How many- more witnesses do‘yon heve?

! 95 4

Mr. Arnold:

We have probably two or three more, Your Honor,

but I don’t think they will be too long inasmuch as

Your Honor has ruled, I believe—

low, we were prepared to make this showing; we

can prove that the State Patrol submitted and asked

for a ruling to the Collector of Internal Revenue wheth-

er or not this. suhsistence was taxable; and they re-

/ ceived a ruling that it was not.

The Court: | . ¢

Well, you must have misunderstood my ruling. I

overruled the Respondent’s objection to that.

Mr. Arnold:

{ beg your pardon.

2 ~

a Court: 3

‘ And what I said was it is not binding on the Com-

missioner even if the Commissioner himself had is- .

* sued the ruling. He can come aiong later on and re-

verse himself. There is nothing binding. \

Mr. Arnold:

It is five o’clock, and I believe Your Honor said -

you would give us an hour in the morning?

~— The Court:

: + Yos, if we start at nine o’cleck.

Mr. Arnold:

If that wouldn't inconvern‘ence His Honor, : believe

T cctild usé that hour and get 1! nrough.

The Court:

Well, now, if you don’t get through, it is going to

bollux up my calendar rather badly.

Mr. Russell:

I believe, Your Honor, that as far as we are con-

cerned, we can finish in an hour.

The Court:

You have got to figure cross examination in there.

Mr. Arnold:

ee Pes we can finish in less than an hour because.

these other questions, I am going to be very brief

on, as Your Honor has already ruled that we can’t

introduce any law in evidence because that is already

the law.

The Court:

I can,take judicial notice of that, and you can point

it out to me on the brief what twe law is.

Mr. Arnoid:

Yes. sir.

The Cont:

All right, ve will recess until nine o’cluck tomorrow

morning.

| =

(Thereupon, at 4:45 o’clock p. m., Mondav, April

‘9th an adjournment was taken until the following day.

Tuesday, April 10, 1956, at 9:00 9’clock a. m.°

. 5A)

Filed Apr. 20, 1956.

(Title Omitted. )

Hearing at Atlanta, Georgia.

Date April 10, 1956.

In the Tax Court of the United States.

Harold Brannon Magness, Petitioner,

VS. Docket No. 55503.

Commissioner of Internal Revenue, Respondent.

Courtroom,

United States Court ef Appeals,

Atlanta. Georgia,

Tuesday, April 10, 1956.

The above-entitled matter came on for hearing, pur-

suant to adjournment, at 9:00 o’clo-k, a. m.

Before: Honorable Stephen E. Rice, J.. Presiding.

Appearances:

(As heretofore noted.)

Proceedings.

The hearing was called to order at 9:00 o'clock a. m.

The -Cour.:

Be seated, please.

Mr. Arno'd:

Mr. Mayo, take the stand, will you plecse. sir?

Whereupon, ROBERT G. MAYO, was called as @

witness by and on behalf of the Petitioner, and, hav-

ing been first duly sworn, was examined and testified

as follows:

The Clerk:

State your name and address for the record, please.

The Witness:

Robert G. Mayo, 1575 McLendon Avenue, Northeast,

Atlanta, Georgia.

Direct Examination.

By Mr. Arnold: |

Q. Mr. Mayo, are you now with the State Patrol?

A. No, sir, 1 am not.

Q. How long.has it been since you were with the

state Patrol?

A. February, 1941.

Q. I will ask you if you were ‘with the State Patrol

in its very beginning, in its formation?

A. Yes, sir; i was,

Q. What position did you occupy?

A. Treasurer.

Q. I wiil have you look at this document right here

and tell the Court what that is?

A. That is the Minutes of the Board of the Depart-

meit of Public fufety.

Q. That is the Minutes of the Board?

A. Yes, sir.

Q@. Were you acting officially when those Minutes

were drawn?

A. Yes, sir; I was.

Q. Is that the official Minutes of the Board?

A. It is.

Q. I will ask you if ‘that is the first meeting of the

Board, the Minutes of the first meeting?

A. Yes,. gir.

Q. I will ask you to look right here and teil me,

Mr. Mayo, what were the Troopers paid when they—

at first?

A. $109 a month.

Q. And then how were they fed?

Mr. Wolff:

Objection, Your Honor. 7

I want to know first off, if Mr. Mayo is testifying

from his own personal knowledge or if this is recol-

lection, or what it is.

By Mr. Arnold:

Q. Are you testifying from your recollection, your

own knowledge?

A. I am testifying from the law that was created

for the —o of Public Safety.

Mr. Wolff:

If he is testifying in respect to the law, The Court

can take indicial notice of any law.

By Mr. Arnold:

Q. Are you also testifying from what you know of

your own knowledge that occurred sats eld

4. That is right.

The Court:

All right, go aheat.

By Mr. Arnold:

Q. Now, you say the men were paid $100 a month?

A. Yes, sir. :

Q. And were they given aye else?

A. Their meals were furnished.————

Q. Their meals were furnished by the State?

A. Yes, sir.

Q. Now, I will ask you to read into the record-—

Mr. Arnold:

Now, if Your Honor please, we don’t want to intro-

duce this because this is the Minutes and they are

using them yet, this book; if we may be permitted to

read from a portion of the Minutes and put that in

the record?

The Court:

All right. Go ahead.

Mr. Wolff: )

May I see the Minutes, first, Your Honor?

The Court:

Very well.

Mr. Wolff: =

May I say, Your,Honor, *he first/page herc, Page

3, is noted ‘‘Copy of a Lever Purporting to be from

Mr. Rivers.” .

The next thing is headed ‘‘Report to the Board of

the Department of Public Safety” on Page 2, is where

Mr. Mayo was getting ready to read. This report

was apparently transmitted by this copy of this letter

of June 15, 1937, appearing on Page 3.

Mr. Arnold:

From the Governor.

Mr. Wolff:

From the Governor, and this report is apparently

a copy of a report also; it doesn’t seem to be the re-

port at all, the original, and I object to it on that

ground.

The Court:

The objection is overruled.

Go ahead.

By Mr. Arnold: may

Q. Read from this just right here, Mr. Mayo; just

that right there.

A. “The men were paid $100 a month during a

period of intensive training, and their meals were

furnished.”’

Q. Now, do you know of your own Knowledge that

that is true and correct?

A. -Yes, sir; I do.

Q. Mr. Mayo, at the time of the beginning of the

formation of the Georgia State Patrol, dic ycu assist

aid help to organize the first troop” a

A. Yes, sir.

Q. 1 will ask you who was the Director at that

time.

A. Clement E. Sutton was General Counsellor.

| Q. Was Captain ‘Car ver in it?

A. He was in it as Director of the Uniformed Di-

vision, —,

Q. Who was-Captain Carter? I believe he is dead.

A. I believe he is; yes, sir.

: Q. Who was he?

62 .\

A. He was the former Captain of Covally. U. S.

Army. |

Q. I will ask you whether or not he did or not

form the Uniformed Division on a pattern with the

United Siates Cavalry? ats

A... Tee, a.

Mr. Wolff: |

Objection, Your Honor. | |

I don’t think this is relevant to the issue at all.

Mr. Arnold:

I’think we are able to show that this is a mi slitary

organization, if Your Honor please. ma

The Court:

All right, go ahead.

By Mr. Arnold: .

Q. Was that true?

A. Yes, sir.

Q. Add as long as you were in the Patrol, was 5 ee

sy3.em followed so far as the military organization

was ~oncerned? |

A. Yes, sir; very much so.

Q. You are more or less familiar with the Patrol of

today, and I will ask you if you are, is it being

followed, that policy of military organization followed

today?

Mr. Wolff:

Objection, Your Honor. ¢ : "

Mr. Mayo a he has not been in the Patrol

since 1941. :

Mr. Arnold: ae

I asked him if he was familiar with it, if he had

kept in en with it and is familiar with if today.

band Wolff: .

- J] presume that Mr. Mayo is not familiar with the

weseieacil organization of the State Patrol.

Mr. Arnold: fee. ee

He inight be.

The Court:

Are you?

The Witness:

Yes.

Mr. Wolff:

I would like to know how he is

The. Witness: :

When the Department of Public Safety v was formed,

it was the responsibility of the men in the Patrol to

see that it was operated successfully, and it was

yery much in the hearts of every one of the Troopers, ,

and every man that has left has kept in constant ,

touch with it.

The Court:

All right, ge anead. Answer. ‘the question.

By Mr. Arnoid: >

' Q. You say that military policy that was formed

by this old cavalry officer, Captain Carter, is in vogue

today?

A. It is in vogue today. |

Q. Now, Mr. Mayo, how did you manage to feed

. the .nen and barracks them when you first started?

A. When the Patrol was first started, the men were

placed wherever we could find a place, bvarding

houses or old yacant schoolnouses, or just any place

that we could find.

Q. That is, for them to sleep?

A.. Yes, sir.

Q. And get their meals at some central place, or

not? «

A. Oh, yes, we had te have a boarding house.

Mosi of them were housed in places wherever they

were situated, and in a boarding house, and they ate

their meals there, of course.

Q. Now, I am going to ask you: ‘Did — make

any changes later in that system?

A. Yes, sir; we did.

Q. What changes were made?

A. We found it absolutely impossible because we

only had one man in the Headquarters and one secre- |

tary ta handle all of the multiple financial details of

the Patrol, and it was just too voluminous to do; so,

the Board changed it to a subsistence type of: pay

and paid it out bimonthiy.

Q. Bimonthiy tc the Troopers?

A. To the Trocpers. |

Q@. The subsistence?

A. That is correct.

Q Why was it a failure? In what particular, Mr.

Mayo?

A: Well, there were several reasons for its being

a failure one of them being, as I said before, the of-

fice work was too voluminous to handle, and the

other thing, it would take the Troopers off the road.

Aiter all, they only made $100 a month and that

wasn’t enough for them to eat anywhere else.

And it would take the Troopers off the road?

It would, sir. ,

And leave the area unpatrolled?

If they ate, it would; yes, sir.

‘They usually ate, didn’t they?

Yes, sir; had to.

| Now then, it was expensive, more expensive to

the State to maintain that sort of an organization?

A; Well, it was almost impossible tc maintain that

sort of organization.

Q. That is, I believe you testified that that en-

tailed a great deal of work?

A. It did.

Q. And with this change of paying them a salary

by the month and subsistence by the month, did ‘that

lessen, the expenses to the State?

OProOPoOre&

Mr. Wolff:

Objection, Your Honor.

He is leading the witness. He has been trying to

_8et him to say one thing for the last three questions.

The Court:

Don’t lead your witness.

Mr. Arnold:

Yam not trying to lead him purposely.

By Mr. Arnold:

Q. Why did the State, Mr. Mayo; for what reason

did the State desire to change from the feeding them

in barracks or boarding houses to giving them a sub-

sistence?

A. The only reason that we changed—the only two

reasons that we changed, was because it was impos-

sible from an office procedure standpoint to handle

“it; and because it would take the man off the road,

off of their patrol duty.

Q. To come there to their meals?

A. To come there to their meals at any one cen-

trally located place; it was an impossible situation.

Q. Was it more expensive to the State to operate

it like you started and with men, men having their

own mess, or in boarding houses, than it would be to

give them subsistence?

A. We couldr’t, with the limited amount ot funds

that we had in the Department of Public Safety at

that time, which is supported entirely by the dollar

from the driver’s license. We could not have set up

messing facilities and bought refrigerators and stoves

and,.cooking utensils and all. It would have been vir-

tually impossible. It would have been financially im-

possible.

Mr. Arnold:

He is with you.

The Court:

Let me see if I understood that last answer.

Was it that it was more expensive to the State to

do it the way you started than the subsistence?

The Winess:

Yes. Your Honor, it was absolutely more expensive.

Cross Examination.

By Mr. Wolff:

Q. You testified, Mr. Mayo, that the Board de-

cided to change from the meals to subsistence pay-

ments.

Will you show me in the Minutes where that was

authorized?

A. I haven't seen these Minutes in 19 years. I don’t

know where it is.

Q. Was it authorized in the Minutes?

A. It was authorized by law, as a matter of fact,

and the Board would merely have set the amount,

if I remember correctiy.

Q. What was authorized by law?

A. Subsistence and salary.

Mr Arnold:

That is correct, Your Horor There is legislation

that fixed this subsistence itself, but it fixed a mini-

mum, and that is a matter of law

By Mr. Wolff:

Q. While Mr. Russell is looking through the Min-

utes, Mr. Mayo, I would like to ask you a few | more

questions.

Were you your self furnished meals while vl were

Treasurer, Mr Mayo? /

A Yes, I was ‘a member of the Uniformed Division.

and was furnished meals in the same manner as the

ethers.

Q. When it was. changed to subsistence, were you

paid subsistence?

A. I was.

-Q. What were your duties as Treasurer, Mr. Mayo?

A. As Treasurer, it was my duty to handle the fi-

nancial business of the Department, to set the budget,

to inspect the barracks for the manner in'which they

were kept, and, well, I think I had 17 titles.

Where were you stationed, Mr. Mayo?

I was the Headquarters man.

In Atlanta? 3

Yes, sir.

At Confederate Avenue?

Yes, sir.

Were you required to travel?

I was.

How often?

That was more or less at my own discretion

because, as the Department required it, or the duties ,

of the Department required it, then I traveled.

Q. Could you estimate the number of days a month

you traveled?

A. Weil, if I might be so bold as to quote my wife,

she expected me when she saw me. |.

Q. Could vou estimate the number of days that yous

traveled?

A. Out of the four years that I was there, I would

estimate that I was traveling at least half the time.

Q. You received subsistence every day for every

day? Each and every day?

A. That is correct.

Q. Are you familiar with the rules and regulations

back in 1937 to °41?

A. ;Yes, sir.

Q. Were you\men required to ites in the Barracks?

A: Yes, sir.

Q. Did you live in the Barracks?

POoPoPOreepe

A. No, sir.

Q. Were’ you a special exception?

A. No, sir; there were no Barracks established in

the City of Atlanta.

Q. They were required to live in the Barracks only

insofar as Barracks were. furnished?

A. Barracks were furnished everywhere excpet in

Atlanta at that time.

Q. Were married individuals required te live in

Barracks? | eae

A. On the Stations, they were; yes, sir. The wives

didn’t come to the men until about six months after

the Patrol was started.

Q. What happened after the Patrol was started?

Were they required to live in the Barracks?

A. Oh, yes, sir. |

Q@. And where did the wives live?

A. Wherever they were before the Patrol started.

Q. Were you permitted to eat at home while you

_ were on duty?

A. Why, yes, I was permitted to eat wherever I

wanted to eat.

Mr. Wolff:

You find those Minutes, Mr. Russell?

Mr. Russell:

Off the record, please

(Discugsion off the record.)

The Court:

On the record, gentlemen.

By Mr. Wolff:

Q. How long did the State Patol furnish meals,

Mr. Mayo?

A. I believe we started paying subsistence on or

about the 15th of October or lst of October, 1937.

~The Patrol went out on organization about the Ist

day of September, 1937.

Q. In other words, a period of maybe 45 days?

A. Approximately, yes.

Q. In this report dated September 1, 1937, does the

Board authorize in that, or the report to the Board of

the Department of Public Safety, is there anything

said in there concerning the changing of meals fur-

nished to subsistence payments? ee

A. To the best of my knowledge, it does not.

Q. That report, I mean that sentence that vou read

previously into the record, that was from the report

to the Board of the Department of Public Safety, was

it not?,

A. Fee, ae.

\ Q. And it was a letter on a report signed by Clem-

ent A. Sutton, Acting Secretary and Special Counsel?

A. Clement E. Sutton.

Q. That is not actually any of the Minutes of the

Board, is it?

A. Insofar is them being included in the Minutes

of the Board, it is, but as a Board meeting, it is not.

Q. It is a copy of a report that was sent to the

Board? ? &

Mr. Russell:

They were approved as Minutes, I mean it was

approved at the Minutes of the next meeting. |

By Mr. Wolff: ;

Q. Following the report, what is the date of the

next Minute appearing in the Minutes Book?

A. Ten o'clock, September 4, 1947.

Q. Is there anything in that record concerning the

changing of. subsistence to meals or changing from

meals to subsistence?

A. I don’t find any such.

Q. What is the date of the next Minute, Mr. Mayo?

A. Four-thirty pm., Wednesday, November 3rd

Q. Is there anything stated in those Minutes con- ~

cerning the changing from meals to subsistence?

The Court:

What are you trying tS get at, Mr. Wolff?

Mr. Wolff:

That it is not in the Minutes.

Mr. Mayo has testified that the Board approved the

changing from the *tmeals to subsistence payments,

and I just want to bring out that it is not reflected

in the Minutes Book if the Board did so rule.

The Court:

Well. can’t we stipulate that? That it is not in this

Minutes Book?

Mr. Arnold:

If it is not in there. I really don’t know, Your Honor.

Yes, we can stipulate that. I wouldn’t mind that at

all.

Mr. Russell: i

We would be delighted to, Your Honor, if you will

also include that it does show some five or six in-

stances where that subsistence was increased from

time to time on various dates. ,

The Court:

All right. Can you stipulate that?

Mr. Wolff:

That was increased by legislation, was it not? :

Mr. Russell: ;

No, siz; it is increased by those Minutes there.

Mr. Arnold: * )

- You see, the Legisiature fixed a minimum and then—

‘the Board itself increased that minimuin according to

tne necessities. The Act itself, “the law fixes it. For

instance, like in ’52, in Mr. Magness’ case, they fixed

a minimum of $4 and not over $5. So that was why,

if Your Honor please, that the boys were trying to

test out what the exact subsistence was in .’52. That

is when the Board. fixed it. al

The Witness:

If I might say a word there?

The Court:

Just a minute.

Mr. Wolff:

I would be willing to stipulate that if I have it.

Mr. Russell: :

If Your Honor please, I will just read into the

record the dates that they were increased.

Mr. Wolff:

I would be willing to stipulate, Your Honor, that

during the period covered by thesé Minutes, which

start in 1937 and, apparent],, cover up through the.

present period, that there are several entries in the

Minutes Sook showing an increase in subsistence grad-

ually over the years.

The Court:

Is that what you want to show? :

Mr. Russell:

Yes, sir; from $1 to $5.

The Court:

Very well, it is sc stipulated.

Mr. Wolff:

I wanted to make sure that it was in the record,

Your Honor, that it is stipulated also that it does not

‘appear in the Minutes where the Board authorized

the changing from meals to subsistence.

Mr. Kussel!:

Your Honor. we would like to qualify that. We will

stipulate that we can’t find it at the present time.

-We couldn’t stipulate that it is not in the Minutes,

but we will. stipulate at the present time we can’

find it.

By Mr. Wolff:

Q Go back o the Minutes of November 3 1937,

Mr. Mayo.

Do you see in there where the Beard authorized

the changing of meals to subsistence payments?

The Court: 5

Well, now, are you going to have him go all the

way through the whole Minutes Book?

Mr. Wolff:

No, Your Honor; he testified that this system was

discontinued Octobe: 15, 1937. Now, this is the first

meeting appearing after October 15, 1937.

The Court: -.

Very well.

Mi... Wolff: ,

And I thought I might cover these Mirutes and

the following Minutes, the next two periods.

The Witness:

I don’t find anything in the Minutes here that covers

_ that, but we could very well have been authorized

by letter by the Governor or the Commissioner of

Public Safety, either one, that would not necessarily

appear in the Minutes setting this thing out. After all,

we were brand new.

—"

Wolfs:

Dy Mi. Woit

Q. . What are = next Minutes appearing, Mr.

Mayo?

A. April 28th, 1938.

Q. Does such authorization to change from meals

to subsistence appear in those Minutes?

A. No. I don’t see that it ~ es.

Mr. Wolff:

No further questions, Your Honor

Mr. Arnold:

Now, if Your Honor please, in order that I may

explain it, this is the Act, the Georgia Act of 1951.

The Court:

Well, you can take care of that on your brief.

Mr. Arnold:

Yes, sir. I know that, if Your.Honor please, but I

wanted to explain, I wanted to get this in the record

if I could.

The Court:

What, the law”

Mr. Arnold:

In connection with just exactly what they are testi-

fying about. ;

The Court:

I think I understand the testimony.

Mr. Arnold:

Yes, | know you do. Alli right.

Re-Direct Examination.

By Mr. Arnold:

Q@. Mr. Mayo, where were the Troopers at the At-

lanta Post stationed at that time? You didn’t have

eny Barracks here. Where were they stationed? _

A. To the best of my knowledge, we set up cots

out there at the Department, I believe. = =

Q. Well, prior to that—

A. Before they—prior to the—

| 76

- /

‘ i

.. Setting up, moving out to the Barracks.

oe]

A. We-kept them in Barracks out here at Georgia

Tech.

-Q At Georgia Tech?

A. Yes, sir.

Q. Now, that was the — here ‘in ——

A. Yes, sir.

Q. At this Post? ,

A. -Yes, sir.

Q. Now, where were they fed, if you remember?

A, .% ‘don’t remember where they were fed at the

time.

Q. They were fed here in town?

A. Yes, sir. | |

Q. Now, I believe you said something about-a-pol-__

icy of married people.

' What was. that? Their wives couldn’t what?

A. I think it‘was more gp less the'ruling of Major

Carter t8at he wotildn’t allow any of the wives ‘to

come to the -Patrol area or where the men were

stationed at that time until they were there for six

* months, and: then they were moved immediately after

they got there: . ;

Q. Now, I will ask you, here on the Minutes dated

‘November 3, 1937, that last paragraph, read it and

tell us. what it means.

Befor~ you answer, let him look at it.

Mr. Wolff: ‘

Those are the biinuten of Keveihee 3, 19377

- The Witness:

‘‘Authority to Pay Captain Revert G. Mayo, Treas-

urer, $15 a month lodging was approved due to in-

(ai

sufficient quarters to house ail officers and Patrol-

men.”’

By Mr. Arnold: |

Q. Now, you mentioned you belonged to the Head-

quarters staff?

A. Correct, sir. | i

Q. Well, now, the Headquarters staff, Mr. Mayo,

is 1t true or not true that they have a lot of traveling

to’ do?

A. Oh, yes, we had ‘ots of traveling to do.

Q. Most of the time or at least 50 per cent of

the time they were on tae.road?

A. Yes, sir; as_I so stated.

Q. And you didn’t have any regular place or bar-

- Yaeks,I_mean so far as eating was concerned. You

ate wherever you were, is that correct? : .

A. That is correct; yes, sir. | fey

Q. And wasn’t it the system then to make requisi-

tion on the Treasurer for your meals?

A. Yes, sir.

Mr. Arnold:

He is wit’ you.

Re-Cross Examination.

By Mr. Wolff: me |

Q. Did you live at home, Mr. Mayo, at the time

the ‘Troopers were quartered out at Georgia Tech?

A. Yes, sir. i

@. Did you ever live in any barracks?’

A. No, sir.

Mr. Wolff:

No further quéstions. ¢

The Court:

All right, Mr. Mayo.

(Witness excused. )

‘Mr. Arnoid: |

_We rest, Your Honor. ea

Mr. Wolff:

Respondent rests, Your Honor.

3 2

The Court:

* All right, I think simultaneous briefs will be all

right in this case. | . rs

How much iime do you want?

Mr. Wolff:

I have got two briefs due, Your Honor, oe April

30th. ‘

The Court:

§0 days?

Mr. Wolff:

Yes, Your Honor.

Mr. Arnold:

Sixty days will pe fine. I have a lot of local work

to do, as far as that is concerned. but I think we

can make our brief in 60 days.

The Court:

All right, and 15 is enough for reply, is it?

Mr. Arnold:

I think it is.

The Court: | |

Mr. Jones will give you the dates.

__Mr. Arnold: % ,

I imagine the copies of the brief will be furnished;

“in pther words, if when I make my brief, I will send

in a copy and ‘he will send me a copy; then, we ought

‘to have some little time to study it, because we might

be tied up in Court and away from home.

The Court:

Well, the briefs are sent to Washington and then

‘they are served on you, on the opposing parties, from

the Clerk’s Office in Washington, If you find that 15

days is insufficient time for your reply brief, why,

you can muil me a motion for an extension. |

Mr. Arnold:

. What I was driving at was, if he would send me a

/ copy, when he sent me a copy, then, when i sent my

brief to Washington, I would send him a copy; then

15 days would be an adequate time for us to study

those briefs and make our replies.

The Court:

I will leave, that up we you gentlemen to work out

between you.

Mr. Arnoid:

Are you willing to do that?

Mr. Wolff:

Yes.

Mr. Arnold:

That suits me, then.

The Court:

All right. We will stand at recess until ten o’clock.

(Whereupon at 9:40 o’clock, a. m. the hearing in

the absve-entitled petition was closed.)

26 T. C. No. 125

' Tax Court of the United States.

Harold Branron Magness, Petitioncr,

: vz Docket No. 55503.

Commissioner of Internal Revenue, Respondent.

‘it Filed-August 31, 1956.

Held, the subsistence allowance received by peti-

tioner, a member of the Georgia State Patrol, was

additional compensation within the meaning of section

22 (a) of the 1939 Code.

James W. Arnold, Esq., for the petitioner.

Herman Wolff, Jr., Esq., for the respondent.

abouts at all tirnes. :

This proceeding involves.a deficiency in income tax

for the year 1952-in_the amount of $341.

The sole issue is whether a subsistence allowance

which the petitioner réceived was additional compen-

sation within the meaning of section 22 (a).

| Findings of Fact.

Petitioner was a resident of Winder, Georgia, dur- |

ing the year in issue and filed his individual income

tux return for such year with the former collector of

internal revenue for the district of Georgia.

During 1952, petitioner was a highway patrolman’

with the Georgia Department of Public Safety. His

station was in the City of Athens, Georgia, a distance

of approximately 25 miles from his home.

As a member of the State Patrol, petitioner was

required to live in a barracks in Athens. and was

subject to call 24 hours a day, every day in the year.

He was entitled to a 24-hour pass one day each week

and to a two week vacation. When off duty, he was

required to advise his headquarters of his where-

In addition to his regular salary, petitioner re-

ceived, in every pay check, an amount denominated

as subsistence. Such amount was paid to him at the

rate of $4.50 per day for every day of ‘the year re-

gardless of whether or not he was on active duty.

Such amount of subsistence was paid to members of

the State Patrol for the purpose of defraying the cost

of their meals. Patrolmren purchased their meals at

any public restaurant of their choice along the route

of their patrol duty. They could eat at any tizne they

chose while on duty but were required to notify their

headquarters of their exact whereabouts. During the

__ year in issue, petitioner received a total of $1,647 for

per diem subsistence, but he did not report such sum

on his income tax return.

~ In his ‘deficiency notice, the respondent determined:

that such sum constituted additional taxable compen-

sation.

Opinion.

Rice, Judge: This case narrows to a question of

whether We shall adhere to two previous haldings of

this Court, Charles H. Hyslope, 21 T. C. 131 (1953);

and Robert H. Saunders, 21 T. C. 630 (1954), revd.

215 F. 2d 768 (C.A. 3, 1954),—holdings adverse to th

position the petitioner takes here—or whether we shall

adopt the views of the Court of Appeais in its re-

versal cf Robert H. Saunders, supra. The petitioner

contends that the facts here closely parallel those. of

the Saunders case, while the-respondent contends that

they are more akin to those of the Hyslope case. In

view of those arguments, we say at the outset,—with

due deference to the Court of Appeals, that we fail

to see any distinction in principle between those cases

and the one here. If the subsistence allowance re-

ceived by Patrolman Hyslope was taxable gross i in-

come to him under section 22 (a), so it was to Patrol-

man Saunders, and so it is to fhe petitioner.

In Charles H. Hyslope, supra, jwe held?that the sum

which the — received in a idition to his regular

if nA f if z, hi

/- Z

salarly, as vintaiibeisinemniabanitt for the expense of rni-

forms, maintenance, telephone, lodging while away

frpm home, and meals eaten during his daily tour of

duty, constituted additional gross income. We also

denied a deduction of the amount actually spent for

the purchase of meals during his daily tours of duty

on the grouiid that the taxpayer there was' in no es-

sentially different ‘position from the average worker

who was unable to have one of his meals at home. /

In Rowvert H. Saunders, supra, on similar facts, we

reached a like conclusion. The Court of Appeals re-

versed our holding in Robert H. Saunders, supra, on

the ground-that the subsistence allowance which the

taxpayer received was paid to him for the convenience

of his employer, the State of New Jersey. That, it

said, was so because by paying ‘the taxpayer a sub-

sistence allowance and permitting him to purchase

his meals at a public restaurant, the quality of the,

State Highway Patrol system was improved. The

Court noted that when the State furnished ‘meals to:

its patrolmen, a majority of them ate at the same

time, and the highways were consequently either not

patrolled at all or were inadequately patrolled during

that particular time of day.

in the course of its opinion, the Court of Appeals

made a careful review of the so-called convenience of

the employer doctrine. Clearly, that doctine is an ad-

ministrative ingrafting of an exclusion from gross in-

come ento those exclusions specifically set forth in

section 22 (b). While we have no quarrel with , the

doctrine, as such, we think by its very nature, being

an exception to the broad coverage of section 22 (a),

it must be sparingly applied. We did not think that

the subsistence allowances received by Patrolmen Hy-

slope and Saunders wre paid to them ior the con-

venience of their employers, nor do we think that the

subsistence allowance received by the petitioner here

was paid by the State of Georgia for its convenience.

The Supreme Court has repeatedly held that sec-

tion 22 (a) of the 1939 Code is broad enough to include

in taxable income any economic or financial benefit

conferred on an employee as compensation, whatever

the form or mode by which it is effected. Commis-

sioner v. Smith, 324 U. S. 177 (1945). The Commis-

sioner’s regulation setting forth the ‘‘convenience of

the employer’’ doctrine clearly recognizes the all-

encompassing nature of section 22 (a). Regulations

111, section 29.22 (a)-3' provides that if a taxpayer

receives living quarters or meals in addition to his

cash salary, the value of the quarters and meals so.

furnished ordinarily constitute taxable income to him. .

Here it is to be remembered that no meals. were

actually furnished by the State to the petitioner; but,

in lieu thereof, he received a per diem subsistence

allowance out of which he might purchase his meals

’ Kegulations 111.

Sec. 29.22(a)-3. Compensation Paid Other Than

in Cash.—* * * If a person receives as compensa-

tion for services rendered a salary and in addi-

tion thereto living quarters or meals, the value

to such person of the quarters and meals so fur-

nished constitutes income subject to tax. If, how-

ever, living quarters or meals are furnished to

employees for the convenience of the employer,

the value thereof need not be computed and added

to the compensation otherwise received by the

emplovees. * * *

at a public restaurant of his choice. He also received

the allowance whether he was on duty or off duty.

With no more regulation by his employer as to the

time, the manner, and the place at which he ate his

meals, the subsistence allowance which the petitioner

received was clearly additional compensation.

Simply because he was on call by his employer 24

hours a day, we fail to see why the Treasury should

underwrite tax exempt meals for this petitioner. If

that were so, any employer could denominate a part

of any employee’s salary as subsistence for the lat-

ter’s lunch-time meal on the theory that, even though

the employee was allowed a period of time to eat

his lunch, he was subject to call by his employer.

Merely stating that proposition refutes it. Yet, we see

no essential difference in that hypothetical situation

and the one before us here. The cost of a taxpayer’s

meals is a personal expense, whether eaten at home

or in a public restaurant. We dare say that a majority

of all taxpayers find it necessary to eat at least one

meal away from home, some two, and this petitioner

apparently all three. But we do not find that the

petitioner’s eating of meais in a restaurant of his

choice, which he paid for from that part of his total

compensation denominated as subsistence, should re-

sult in favored tax treatment denied te all other tax-

payers who are employees and eat one or more meals

away from home.

Decision will be entered for the respondent.

DECISION.

The Tax Court of the United: States.

Washington.

Haroid Brannon Magness, Petitioner,

eee Docket No. 55503.

Commissioner of Internal Revenue, Respondent.

Pursuant to the determination of the Court, as set

forth in its Findings of Fact and Opinion, filed —

31, 1956, it bes

Ordered and Decided: That there is a deficiency in

income tax for the taxable year 1952 in the amount of

$341. A

(Sgd.) STEPHEN E. RICE,

Judge.

(Seal)

Entered Sept. 5, 1956.

_ ee 2.4

Filed Oct. 23, 1956.

(Title Omitted.)

Petition for review of the decision in the above case

by the Tax Court, of the United States, determining

that a deficiency existed of $341.00 for the taxable:

year 1952.

By JAS. W. ARNOLD,”

| Attorney of record for petition-

er.

P. O. Box 508,

Athens, Georgia.

In the United St«tes Court of Appeals, Fifth Circuit.

Harold Brannon Magness, Petitioner,

“ “we. e

Commissioner oi Internal Revenue, Resfondent.

Tax Court Docket No. 55503.

Now comes Harold Brannon Magness, the tax pay-

er, by and through Jas. W. Arnold, his attorney of

record in the above case,’ files his petition for review

by the United States Court of Appeals, Fifth Circuit

of the decision by the ¥ax Court of the United States,

‘Ordered, Decided, and Entered September 5th, 1956,

determining, that there was a deficiency in the in-

come tax of the above petitioner, for the taxable year

1952 in the amount of $341.00 and respectfully shows:

1°: "Phat the United States Court of Appeals, Fifth

Circuit has jurisdiction of this case for review pursu-

ant 40 the provisions of Section 1141 of the Internal

Revenue Code; the tax payer having made and filed

’ his annual income tax returns for the taxable year

1952: in the office of the Collector of Internal Revenue

for Georgia, at Atlanta, Georgia.

2. That petitioner, the tax payer is an individual,

whose home address is, R.F.D., Winder, Barrow Coun-

ty, Georgia, and who was during the taxable year

1952 a member of the uniform division of the De-

partment of Public Safety of Georgia, known and

designated as, ‘‘The Georgia State Patrol’’, and was

stationed during the year 1952 at the Athens Georgia

Post of said patrol, a distance of 26 miles from his

home address.

3. That the nature of the controversy here involves

@ proper determination of petitioners’s liability for

Federal Income Tax for the Calendar year 1952.

Petitioner received a salary for 1952, but the salary

is not here involved, as the taxes for the income from

- salary was duly pais at the time of filing his annual

returns. The sole question here is; whether a_ sub-

sistence allowance to petitioner in addition to his

salary, by‘ the State of Georgia, paid ta him separate-

ly from his salary, Wmder circumstances as petitioner

contends, was not for the personal convenience, com-

‘fort or pleasure of petitioner, but solely because he

could not otherwise perform the services required of

him by the State, his duties being continuous and re-

quired his presence at all times. He was_ noi, only

required but compelled to occupy the barracks at the

Athens Post of the Georgia State Patrol, and the ‘sub-

sistence was furnished him by the State in lieu of

meais in kind. which had formerly been prepared at

the Post and eaten at the Post: this method, ~~

tioner contends was changed by the State to effect a

‘saving to the State in money and to improve the

quality of the patrol system, by releasing the men

for patrol duty at a time when they would otherwise

be congregated at the post for meals, and was there-

fore for the benefit and convenience of the State of

Georgia, employer of petitioner. This in substance is

the issue. :

4. Petitioner, the taxpayer, being aggrieved at the

findings of facts and conclusions of law contained in

said findings and opinion of the Tax Court, and its

decision entered pursuant thereto, desires to obtain a

review thereof by the United States Court of Appeals,

Fifth Circuit, comes now and contends, that the Tax

Court erred in the following particulars to wit:

Ist; in holding that the Syslope case, 21 T.C. 131

(1953) and the Robert H. Saunders case, 21 T. C. 630,

(1954) and the case at bar were not distinguishable

in principie; saying, “If the subsistence allowance

received by Patrolman Hyslope was taxable gross in-

come to him under Section 22(a), so it was to Patrol-

man Saunders, and so it is to Petitioner (case at

bar)’’ Hyslope was an Indiana State Patrolman, the ~

holding of the Tax Court in his case was not appealed

from, therefore it became the law.of that @ase., The

Saunders Case, a New Jersey Patrolman, ‘was ap-

pealed to the United States Court of Appeals, Third:

Circuit, and was by that Court reversed, see, 215 Fed.

2nd, 768. It is petitioner’s contentions, (a), that the

Hyslcpe case is so distinguishable on the facts from

that case at bar, that the same principle of law can-

not be applied to the two cases. (b), that the Saunders

case, and the case at bar are more nearly parallel

cases on the facts, and therefore, the Tax Court is

bound by the decision in that case, and not to follow

| iry the case at bar, is-to repudiate it, which peti-.

tioner contends, the Tax Court cannot’ do, and was-

error, and contends; mised

1; that the decision here complained of, is con-

trary to the law and.4$ not supported by the law.

2nd: that the is is decidedly and es

against the evidence!and the law, and: against the

weight cf the evidence and the law. ;

3rd; that the decision is contrary to the law and

the evidence, and> contrary to the principles of jus-

tice, and has the effect af ov yerruling the decision in

the Saunders case supra by the United “mae Court

of Appeals, Third Circuit. ;

4th: that the Tax Court did not base its findings

upon its independent judgnyent on-the tracts and law

of the case.at bar, but by adoption of its view in

another case or cages, .one of which of these cases,

had been reversed. i(Sawiders Ccasé supra) the other

case had not been appeaied, aud petitioner contends,

that this was error and says, that the Tax Court

snould have considered, and adjudged the case at

bar upon its own merits, independent of the. Gourt’s

opinion im some other case and Was error.

Sth: petitioner comes now and names himself as

appellant and names the Commissioner of Internal

Revenue as appellee herein, and-shows, that material

to a clear understanding of the errors herein com:

plained of are the following portions of the record

to wit:

| Ss ;

ist: The docket entries of the proceedings before

the Tax Court. |

2nd: All pleadings before the Tax Court.

. hg

3rd: Findings of Fact. Opinion, and Decisions of

the Tax Court. |

4th: Petition for Review.

Sth: A brief of the evidence as agreed upon by the

partiess which is to include all documentary evidence.

Petitioner prays: That the decision of the Tax Court

be reversed and it be detrmin . that no deficiency

for, 1952 be due by petitioner.

(Sgd.) JAS. W. ARNOLD,

Counsel ‘sf Record. for Peti-

| tioner. _ |

Address’ | | ‘ :

Box 508, Athens, Georgia.

Georgia, See

Clarke County. —

I, Jas: W. Arnold, being first duly sworn, says that

he is counsel of record in the above named cause;

that as such counsel he is authorized to verify the

foregoing, petition for review: that he has read said

petition and familiar with the statements contained

therein; and that said statements made are true to the

bes of his knowledge, information and belief.

(Sgd.) JAS. W. ARNOLD. a

Sworn to and Subscribed Before Me, this 29 day of

September, -1956.-

(Sgd.) GUY B. SCOTT, JR.,

Notary Public, Clarke County,

Georgia.

(N. FR, $eal)

NOTICE OF FILING PETITION FOR REVIEW.

Filed Oct. 23, 1956. oS

(Title Omitted.)

To: John Potts Barnes, |

Chief Counsel,

Internal Revenue Service.

You are hereby notified that the above-named peti-

tioner did, on the 23rd day of October, 1956, file with

the Clerk.of The Tax Court of the United States, at

. Washington, D. C., a petition for review by the United

“States Court cf Appeals for the Fifth Circuit, of the

decision of ‘his Court heretofore reridered in the above

entitled case. Copy of the petition for review as filed

‘is hereto attached and served upon you

Dated this 23rd day of October, 1956.

(Signed) HOWARD P. LOCKE,

Meri The Tax Court of the

United States.

Service of copy of Petition for Review acknowledged

this 23rd dav of October, 1956.

(Signed). JOHN POTTS BARNES, CAB,

Chief Counsel, Internal Reve-

nue Service, Attorney for Re

spondent.

PRAECIPE FOR RECORD.

Filed Oct. 23, 1956.

(Title Omitted.)

To the - imagacke of the Tax Court of the United States:

§ You’are hereby requested to prepare and certify

and transmit to the Clerx'of the United States Court

of Appeals. Fifth Circuit, with referenc® to petition

for review heretofore filed by petitioner in the above

cause, a transcript of the record in the above cause,

prepared and transmitted as required by law and by

the rules of said Court, and to include in said tran-

script of record the*following documents or certified

copies thereof, to wit:

Ist: The Docket entries of all proceedings before

the Tax Court. £

ond; ‘Pleadings before the Tax Court of the United

States,” as follows: 7

(a) Petition for Redetermination.

(b) Answer of Respondent.

3rd; The Findings of Fact nd Opinion of the Tax

Court of the United States.

4th: The Decision of the Court.

5th; The Petition for Review, filed by petitioner in

the above cause.

6th; The Statement of Evidence, with Exhibits 1.2

thru 13 and A attached thereto.

7th;, This Praecipe.

(Sgd.) JAS. W. ARNOLD,

(Jas. W. Arnold),

Counse] of Record for Peti-

tioner.

Service of a copy of the foregoing designation ac-

knowledged this 23rd day of October, 1956.

(Signed) JO.IN POTTS BARNES, CAR,

Chief Counsel, Internal Reve-

nue Service, Attorney for Re-

spondent. |

95 a

MOTION FOR TRANSMISSION OF TESTIMONY

AND OF ORIGINAL EXHIBITS.

Filed Nov. 16, 1956.

In the United States Court of Appeals for the Fifth

Circuit.

Harold Brannon Magness, Petitioner on Review.

v. T. C. Docket No. 55503.

Commissioner of Internal Revenue, Respondent on

ae Review.

Come now the parties to the above-entitled proceed-

ing by their counsel of record, and move:

1. That the original transcript of the testimony

taken before the Tax Court of the United States in At-

lanta, Georgia, on April 9, 1956, as designated in

praecipe for record, in lieu of a narrative statement

of evidence, be made a part of the transcript of rec-

ord in this cause to be filed with the Court, said

original transcript to be returned to the Tax Court

when it has served the purpose of this Court.

2. That fhe originals of Petitioner’s Exhibit 1

through 13 and Respondert’s Exhibit A, instead of

being fully set: forth in the transcript to be certified,

by the Tax Court to this Court, may be transmitted

by the Tax Court to this Court.

3. That said exhibits need not be printed in the |

record on review herein but may be referred to by

counsel in their respective briefs and on oral argu-

ment, or reproduced, in. whole or in part, in an a

pendix to their respective briefs, and considered by

the Court with the same force -—e effect as if included’

in the printed record on review.

4. That the exhibits are to refnain in custedy of

the Tax Court, until ten days prior to the hearing be-

fore this Court, and upon direction of counsel for peti-

tioner, to be“then transmitted by the Cierk of the

Tax Court to this Court.

So Ordered:

(S.) WAYNE G. BORAH,

‘U. S. Circuit Judge.

“November 14, 1956.

(S.) JAS. W. ARNOLD,

Coupsel for Petitioner on Re-

view.

Box 508,

Athens, Georgia.

(Signed) CHARLES K. RICE, CAR,

(Charles K. Rice),

Assistant Attorney General.

(Signed) JOHN POTTS BARNES, CAR,

(John Potts Barnes),

Chief Counsel, Internal Rev-

enue Service, Counsel for

Respondent on Review.

A true copy.

Test:

JOHN A pr ncn JR.,

Clerk, S. Court of Appeals,

* Fifth Circuit,

* By (Sgd.) CLARA R. JAMES,

(Seal) Deputy.

New Orleans, Louisi.na, Nov. 14, 1956.

CERTIFICATE.

The Tax Court of the United States.

_ Washington. — :

Harold Brannon Magness, Petitioner,

mane Vv. Docket No. 55503

Commissioner of {nternal Revenue, Respondent.

In testimony whereof, I hereunto set my hand and

affix the seal of The Tax Court of the United States,

at Washington, in the District of Columbia, this 7th

day of December, 1956. |

HOWARD P. LOCKE,

(Seal) Clerk, The T: x Court: of the

of the United States do hereby certify that the Jore-

going pages, 1 to. 108, inclusive, contain and are a

true copy of the papers of record, on file in my of-

fice as called for by the Praecipe and Order of the

Appellate Court in the appeal as above numbered

and entitled.

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.