# Petition for Writ of Certiorari — Milwaukee & Suburban Transport Corp. v. Commissioner (No. 928) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1014%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text Supreme Court of the United States eee Te ‘| ae a « No. ee WV AEE &@ SET HRAN TRANSPO ele Mee ° ° / ‘ ‘ww © ISSTONEDR ol INTHE Ts BEN! s 4 CROSS PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR - THE SEVENTH CIRCUIT , It 4 bee | “Se Titik oe 7 HI feast Mareen > \{ if AS |, I re A f \\ | lili ie Titi sien by | INDEX.- PAGE PN oe ees ene chiteesoceshr cek 2 Jurisdiétion ......... Bhyeanascaweviaiwaraneaces 2 Questions presented ........... sehewanns PRO ee 2 Statutes and Regulations involved .......... baa i py CI eons vneiunins (Maupiek i eawedeatenuniandas 3 Reasons for granting the writ ...... suis volicoebinsids i) Nas wa Sea neacxedn éhadndvdacanendcncdinck. 9 WIE Se hug Siwscus cca wabiunsaececcdtbeucts 11 CITATIONS. Cases. * Burk-Waggoner Oil Assn. v. Hopkins, 269U.S.110.. 7. _ Burnet v. Harmel (1932), 287 U.S.193 .......2.0.... 7 Commissioner y. H. P. Hood and Sons, Ine. (C. nities _ RR cave seirnnshadeienchvicmategth 8 Commissioner 7. GD PP. P. sens? ae “(C. A. 2), PETE bows ss nasnchnwheetes ck ccxchaeveens 6, 8 Commissioner v. Page Oil Co., 129 Fed. Ae wos... 8 Commissioner v. Palmer, Stacy- Merrill (C. A. 9), BES Wed, 98 GOD oo ccc cccc ccc cececcccnceeeces 6, 8 Commissioner v. Proctor Shop, Ine. (C. A. 9), 82 Fed. EM ceili occ ge ce ee ace. Commissioner v. Tower, 327 U. S. 280 .............. 7 Gilbert ‘ Commissioner ((. A. 2, 1957), 248 Fed. 2d We trent vasd ved cuit ioe. 6 | ii Helvering v. Lazarus Company, 308 U.S. 252 ........ Arthur R. Jones Syndicat v. Commissioner (C. A.7), 23, Fed. DED Hon eee a sav sereeescanacascgessees 113° Keiedsem-oeehes hha deaevah te ngn seen tin Sac. 29.23 (b)-1. Isreest. Interest paid or ac- erued within the year on indebtedness may be de- ducted from gross income * ° °. ; | ° e ° * ; _? _* © © So-called interest on preferred stock, which. ‘is in reality a dividend, thereon, cannot be deducted in computing net income.-* *** = Internal Revenue Code of 1954: . tore Sac. 162: Trade or Business Expenses. (a) In Gen- eral—There shall be allowed as a deduction all the ~ ordinary and necessary expenses paid or incurred during the-taxable year in carrying on any trade or business eee "Internal Revenue Code of 1954: Buc. 163 (a) General Rule—There shall be allowed as a deduction all interest paid or acerued within the taxable year on indebtedness. — 12 Treasury Regulations , Sac. 1.163-1 (1954 Code) : > ae Interest Deduction in General. (a) 7 as oe erwise provided in. sections 264-267, inclusive, intem est paid or accrued within the taxable vear on it edness shall be allowed as a deduction in comp taxable income. 8 ® P e ; ‘ e. « . 2 (ec) * * * Se-called interest on preferred 3 which i is in reality a dividend thereon, cannot be + ducted in computing taxable income. * * ” v Olhce-Suprema Court, U.S, E COPY | . FILED MAY 10 1961 No. 928 JAMES R. BROWNING, Clerk iene, ei —- wee In the Supreme Court of the United States ' OCTOBER TERM, 1960 PEE BES PLEA * MILWAUKEE & SUBURBAN ‘TRANSPORT CORPORATION, PETITIONER Bs . 3 % ee VU. COMMISSIONER OF INTERNAL REVENUE ON CROSS PETITION POR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT MEMOR ANDUM FOR THE COMMISSIONER OF INTERNAL REVENUE IN OPPOSITION ARCHIBALD Cox, Solicitor General, Department of Justice, ’ Washington 25, D.C. 0 LEE EEK ELODIE NS BOSS! is ; Iu the Supreme Court of the United States OCTOBER TERM, 1960 t n ‘ - No. 928 MILWAUKEE & SUBURBAN TRANSPORT CORPORATION, _ PETITIONER | Vv. late COMMISSIONER OF INTERNAL REVENUE -_ | ON CROSS PETITION FOR A WRIT OF CERTIORARI TO THE ¥ UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ig MEMORANDUM FOR: THE COMMISSIONER. OF INTERNAL REVENUE a, IN OPPOSITION 4 We respectfully invite the attention of the Court to Ahe following facts, which show that the cross petition Was filed out of time: | a pe The judgment of the Court of Appeals was entered mm October 24,1960. The cross petition was not Received for filing in this Court until April 26, 1961, days subsequent to the entry to judgment. Peti- rt mer sought no extension of time, and its er'oss peti- - Filon was in any event filed beyond the time which ae _ (1) 9 would have been available to it if the maximum extension of sixty days had been applied for and ' granted.* It seems plain, therefore, that the cross petition should be denied or dismissed for failure to file within the time specified by 28 U.S.C. 2101(c). Respectfully submitted, ARCHIBALD Cox, nas Solicitor General. May, 1961. _ * The Commissioner lost, in the court below, on an issue discrete from those which Milwaukee & Suburban seeks t raise. Upon timely application by the Commissioner, the time within which to petition for a writ of certiorari was extended, by’ order of Mr. Justice Clark, to and’ including March 24, 1961. The Commissioner’s ‘petition, which is now pending (No. 843, this Term),. was filed on March 23, 1961. vu. 8. Covenneant paimtine orrice, 1961 ses713 «(1287 ° 2 - ot A te" Supreme Court of the United States No. 928 TIONER ? REPLY MEMORANDUM CF MILWAUKEE « SVUBUR BAN TRANSEORT CORPORATION CHOSS PET! IN THE - Supreme Court of the United States Octrosper T: xm, 1960. . No. 928. MILW AUKEE & SUBURBAN TRANSPORT CORP aT; Petetioner. ws. fl — COMMISSIONER OF INTERNAL BEVENUE, REPLY MEMORANDUM OF MILWAUKEE & SUBUR- BéN TRANSPORT CORPORATION, CROSS -PETI- TION. There is no dispute that this cross-petition was not filed within the time allowed for filing an original petition for certiorari. The question is whether this is necessary. If so, the filing ‘of a cross-petition would be impossible in moést cases, including this one. : The point raised by the government’s memorandum ini- volves a question of practice and not of jurisdiction. This court not’ only: has-the power to accept this cross-peti- tion, but even in the absence of u cross-petition, has the right in its discretion to conSider points not raised by the petition for ‘certiorari. Langnes v. Green, 282 U. S. 531, 388,75 L. Ed..520, 525. _ The cross-petition and cross-appeal are highly benefi- cial in reducing the number of appeals. With such proce- 2 dure available, the partially successful party in the a court 10 many cases will not hazard hix partia! vietery by initiating review. If the government ’ & position is sus- tained, such partially successful party snust -anticipate the appeal of his adversary and to protect himself must utinécessarily burden the court by filing an or _ peti. tion for certiorari. 7 The rules of this court reeognize wee sanction & cros- agree Paragraph 5 of Rule 21 provides for the record to be filed on a cross-petition and Paragraph 6 of the same rule states : ‘6. Any respondent, including a mca ore r, may, ’ within the time allowed for filing his brief im oppo- sition or his cross-petition, file duly certified portion: of the record additional to ‘those filed by the peti. - tioner.’’ (Italics ours.) 3 The ‘government’ & contention would ofaatively destroy the cross-petition: Counsel for this petitioner in October of 1960 advised the Attorney General's office that if a_ peti tien for certiorari were filed in this court, this petitioner would file a ¢ross-petition. The ninety-day period for a petition for certiorari in this case expired on January 23, 1961. On Januaryal8, 1961, without notice to petitioner, an extension of time was granted to the Solicitor Gen. eral to file the government’s petition for certiorari to and itticluding March 24, 1961; however, this petitioner had .no knowledge of this. action until receipt of a letter of January 24, 1961, from the office of the Solicitor General dated January 1961. No bad faith jis claimed by peti. ’ tioner but the above facts demonstrate that a cross-peti. ‘tion could not have beer filed on the facts in this case’ ' if the government’s contention is sustained. Under the government’s contention, cross-petition for certiorari is a complete misnomer. If cross-petition must be filed within the original time allowed for filing a 3 petition ‘for certiorari, it would, be as much ab original petition as the opponent's petition. The words CrONs- pe tition or cross-appeal presume that a petition ot ay ap- peal has been filed. Further, the conditional cross-petition which was filed. by this petitioner and vhich was. ap proved in McC'omb y. Farmers Reservoir and Irregation (o,, 3385 U.S. 809, would’ be abrogated except where the original petition is filed well in advance of the ninety-day period allowed for. certiorari. ore Both Wisconsin, where the trial was held, and IHinois. where the 7th Cireuit reviewed this decision, allow a rea sonable time for a cross-appeal.’ -Petitioner submits that Paragraph 6 of Rule 21 should be read as granting a respondent time to file a ergs- jetition within the time allowed for filing the respond ent’s brief. Otherwise, this heneficial procedural device specifically provided for by the rules of this court would be destroyed by the simple maneuver of: filing a peti tien for certiorari so near the end of the ninety-day perio: that it ix impossible to file a cross-petition.. . This is not a case where petitioner has been negligent or derelict such as in Grigsby v. Purcell, 99 U.S. 505: 25 L. Ed. 354, or Winslow vy. Wilcox, 105°U. S. 447; 26 1. Bd. W065, where vears elapsed after the time had expired ‘he fore the cross-appellant attempted fo perfect their ap- peals. Here, petitioner filed its cross-petition at the firs! opportunity to do so and within the time allowed for its brief. . s Petitioner is unable to find any authority denving the right to file such cross-petition on the facts in. this case where the petitioner has diligently prosecuted its cross petition. 28 U. S. (.°2101 (e) cited by the Solicitor Gen eral does not sustain the government's porition because a l. Wiseonsin Statutes 1959, See 274,12; Iilinois Revised Stat. utes 1959, Chapter 110. Sec. 101.45 (Supreme Court Rule *%5) * it does not refer to cross-petitions for certiorari and be cd@use the ‘‘judgment or decree in a civil action" is aj ready in the process of being brought before this court . by the government’s petition for certiorari. The necessary copies of the cross-petition were shipped by Gunthorp-Warren Printing Company from Chicago on April 19, 1961, but, through inadvertence, the docket fee was not included. Upon discovering this oversight, a check _was forwarded in payment of the docket fee. The condi- tional cross-petition was. received by the Clerk well within the time allowed by the rules to file ‘& response to the petition for certiorari. . As shown above, the rules seem to contemplate that.a respondent to a petition for certiorari ‘shall have time (i.e.,30 days) to respond: to the petition by a brief in opposition or a cross-petition, or bot. Unless the re spondent has the same timé’in which to file a cross-petition as it has for filing a brief in opposition, the rule provisions granting the right to file a cross-petition are meaningless. It is respectfully submitted that the conditional cross petition was filed in apt time in aeeerdance with the rules of this Court. Respectfully submitted, Ricuarp R. Tescuver, Ropert THorsen, —W. W. Brownrnc, Dane L. Sorvex, . Attorneys for Petitioner May, 1961. r --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1014%3A2. Public record. Not legal advice.