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MILLEG v. UNITED STATES

December 19, 1950

MILLEG
v.
UNITED STATES et al.



The opinion of the court was delivered by: BYERS

This is a plaintiff's motion now stipulated to be for summary judgment under Fed. Rules Civ. Proc. rule 56, 28 U.S.C.A.

The plaintiff seeks to recover income tax payments made by her, with interest, as follows:

 Year......Amount

 1942.......$ 266.79

 1943........228.90

 1944........479.00

 1945........412.51

 1946........408.34

 Total...$ 1,795.54

 The plaintiff has duly demanded a refund as to each said payment, none of which has been made; these claims for refund 'have not been allowed or rejected' according to applicable provisions of the Internal Revenue Code, 26 U.S.C.A., and as to each a reasonable time has elapsed for such allowance or rejection, etc.

 The plaintiff's challenge is to the constitutionality of Sections 22(b)(3) and 162(d) of the Internal Revenue Code according to the Act of 1942, in so far as they operate to tax as income, so much of a bequest as was in fact paid from income even though invasion of the capital funds of a testamentary trust would have been authorized, should the income yield not have been sufficient to provide the annual payment directed to be made to the beneficiary.

 The text of the questioned provisions is to be found in the margin. *fn1"

 This complaint was filed March 15, 1950, and as part of the record as now made an additional fact is established for such effect as it may have, namely, that for the year 1947 a tax was paid March 10, 1948, in the sum of $ 399.15 together with a claim for refund based upon the same claim as is here asserted concerning these prior years, which was allowed by the Collector, and a check for the said amount with interest computed to November 16, 1948, was issued to the taxpayer.

 In her own language: 'In substance I claimed that the money I received under the will is a testamentary gift and is not ...


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