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04/02/53 Keneipp Et Al. v. United States.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


April 2, 1953

KENEIPP ET AL

v.

UNITED STATES.

*fn2 CANAL BANK V. HUDSON, 1884, 111 U.S. 66, 4 S. CT. 303, 28 L. ED. 354; GRIFFITH'S DAIRY V. SQUIRE, 9 CIR., 1943, 138 F.2D 758; KENTUCKY NATURAL GAS CORP

v.

INDIANA GAS & CHEMICAL CORP., 7 CIR., 1942, 129 F.2D 17, 143 A.L.R. 484; EVERGREEN CEMETERY ASS'N

v.

BURNET, 1930, 59 APP. D.C. 397, 45 F.2D 667.

Before EDGERTON, CLARK and PROCTOR, Circuit Judges.

UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1953.CDC.28

April 2, 1953. Decided

PER CURIAM.

This appeal involves a suit in the District Court to recover an overpayment of federal income taxes. On a prior appeal, 1950, 87 U.S.App.D.C. 242, 184 F.2d 263, the principal question was whether a gain upon a condemnation award was a capital gain. This depended upon whether the property was "used in trade or business" or was "held for the production of income." *fn1 We remanded for further proceedings and findings. The District Court took additional evidence and found that part of the property was "used in trade or business," and the "gain" to be ordinary income. A recomputation upon that basis for the year 1941 resulted in findings of a tax of $1307.98 and a total refund of $1931.53, plus statutory interest, for which judgment was entered.

.

On this appeal error is assigned in the taking of additional evidence. We think such action was permissible. Appellants also attack the findings in some particulars. However, they failed to bring to this court any record of the evidence upon which the findings were based. Therefore, we must assume that there was evidence to support the findings,*fn2 and in the absence of evidence showing them to be clearly erroneous, we must affirm. *fn3

So ordered.


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