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LUPIA'S ESTATE v. MARCELLE

January 2, 1953

LUPIA'S ESTATE
v.
MARCELLE



The opinion of the court was delivered by: BYERS

This is a plaintiffs' motion to strike the answer and for summary judgment according to the prayer of the complaint in an action to recover payment of federal income tax. It was argued on October 29, and decision was deferred at the suggestion of both sides, pending the outcome of an appeal then pending in the Fifth Circuit, 200 F.2d 181, in the case of Bickerstaff v. Allen, D.C., reported in 102 F.Supp. 840.

That appeal was decided November 29, 1952 and a copy of the opinion reversing the decision of the District Court was filed with the undersigned on December 8, 1952.

 The question of law there involved is identical with the one here, and the facts are so closely parallel as to preclude differentiation.

 The issue was presented to former Judge Kennedy of this Court on September 3, 1952, in a defendant's motion to dismiss, which was denied by him eight days thereafter. Lupia's Estate v. Marcelle, D.C., 107 F.Supp. 552, 553.

 His opinion followed the Bickerstaff ruling below, and concluded with the observation: 'I am in complete agreement with what Judge Hoyt (Chief Judge T. Hoyt Davis) says in the Bickerstaff case.'

 The instant facts are not in dispute:

 Raymond Lupia, the decedent above named, a United States Army Technical Sergeant, was killed in action on January 7, 1945.

 Lupia filed his income tax returns on a calendar year basis. At the time of his death he was a general partner of Metro Coat & Suit Co., a limited partnership, whose tax year ran from July 1, 1944 to June 30, 1945.

 The tax return for the partnership for the fiscal year ended June 30, 1945 shows Lupia's share of the income to be $ 8,184.05 for the period from January 7, 1945 (the date of Lupia's death) to June 30, 1945.

 The plaintiffs filed a 'Fiduciary Income Tax Return' for the calendar year 1945 reporting that amount, upon which a tax of $ 2,039.52 was paid.

 Plaintiffs now seek a refund of that payment since the income of a soldier is exempt from income taxes for the entire year in which his death occurred, according to 57 Stat. 149, 61 Stat. 778, former Section 421 of the Internal Revenue Code, 26 U.S.C. § 421, which reads:

 'Abatement of Tax for Members of Armed Forces Upon Death.

 'In the case of any individual who dies on or after December 7, 1941, while in active service as a member of the military or naval forces of the United States or of any other United Nations and prior to January 1, 1948-

 '(a) the tax imposed by this chapter shall not apply with respect to the taxable year in which falls the date of his death, or with respect to any prior taxable year (ending on or after December 7, 1941) during any ...


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