DISTRICT COURT, E.D. NEW YORK
March 29, 1939
The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
The question presented by this suit for refund of Federal income taxes paid by the plaintiff is, whether certain income received by the plaintiff in the years 1931 and 1932 as compensation or salaries paid to him for services rendered as attorney to several Long Island incorporated villages, is taxable by the Federal government. Considerable discussion and argument has been directed by the parties toward the determination of whether the taxpayer was an employee of the municipalities or was an independent contractor within the doctrine of Metcalf & Eddy v. Mitchell, 269 U.S. 514, 46 S. Ct. 172, 70 L. Ed. 384. Extended consideration has also been given to the scope and effect of Helvering v. Gerhardt, 304 U.S. 405, 58 S. Ct. 969, 82 L. Ed. 1427.
The recent decision of the Supreme Court in Graves v. People ex rel. O'Keefe, 59 S. Ct. 595, 83 L. Ed. 927, 120 A.L.R. 1466, on March 27, 1939, however, makes the determination of the first point immaterial and leaves no doubt with respect to the intended scope of Helvering v. Gerhardt, supra. It is now clear that the long recognized immunity of the salaries of federal or state officers and employees from the taxing power of the other sovereign, state or federal, finds no support in the Constitution of the United States, where the tax is non-discriminatory. Since this claim for refund is predicated wholly upon a doctrine which is no longer recognized, the action must be dismissed.
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