The opinion of the court was delivered by: NOONAN
On March 3, 1959, at the conclusion of the plaintiff's case, I granted the defendant's motion to dismiss the complaint. The plaintiff now moves for re-argument.
The pertinent facts of this case are as follows:
In April 1937, the plaintiff's father, Dr. Ing Edmund Weinmann, died. At his death he owned the Weinmann works which consisted of a glass factory, a zinc factory and a power plant. He also had vast stockholdings in Bruexer Bergbau, a mining corporation and in the Bohemian Union Bank.
By a decree of a Czechoslovakian court the plaintiff herein, Herbert P. Weinmann, inherited 1/3 interest in the 'works' and 1/4 interest in the stockholdings. The plaintiff has evaluated his holding at $ 313,728.32.
Upon the father's death, and the transfer of the property, the three Weinmann brothers continued to operate the plant as a partnership. In 1939, however, with the threat of a German invasion, the plaintiff herein, who is of Jewish descent, fled his country. In March 1939 the Germans did in fact invade Czechoslovakia and on November 2, 1942, the plaintiff's property was confiscated.
The plaintiff established a residence in the United States and filed an income tax return for the period from May 12, 1941, his date of entry to December 31, 1941. The plaintiff paid a tax of about $ 11,154.18.
By the Revenue Act of 1942 (26 U.S.C.A. § 127) property located in any enemy controlled area was deemed confiscated and a deduction was allowed under this war loss provision. The plaintiff accordingly filed a claim for a refund of his 1941 tax and when this claim was allowed his entire tax payment for 1941 was refunded to him.
The German Army withdrew from Czechoslovakia in May 1945. In October 1945, however, the plaintiff's property was nationalized.
In 1949 the plaintiff, contending that he had effectively resumed control over his property, between May and October 1945, filed a claim for refund of his 1945 taxes. He predicated his right to this refund on the following alternative legal theories:
1. Loss under Sec. 23(e)(3), 26 U.S.C.A. § 23(e)(3), or
2. Loss by involuntary conversion.
The Commissioner disallowed this claim and as a result this action was instituted.
The trial of this action commenced before me on February 18, 1959 and at the conclusion of the plaintiff's case the defendant moved for the dismissal of ...