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July 1, 1965

Sanford H. Markham and Sylvia Markham, Plaintiffs
United States of America, Defendant

Levet, District Judge.

The opinion of the court was delivered by: LEVET

Opinion, Findings of Fact and Conclusions of Law

LEVET, District Judge.

 The plaintiffs have sued for a tax refund in the amount of $3,303.73 plus interest. This sum was paid to the defendant pursuant to a determination by the Commissioner of Internal Revenue of a tax deficiency for the year 1958 in the amount of $2,211.73 and for the year 1959 in the amount of $1,092.00. Timely claims for a refund were filed and after expiration of six months plaintiffs commenced this refund suit. The action was tried before the court without a jury.

 After hearing the testimony of the parties, examining the exhibits, the pleadings, the briefs and the proposed findings of fact and conclusions of law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:

 Findings of Fact

 1. The plaintiff, Sylvia Markham, *fn1" attended Cornell University and Barnard College, graduating from Barnard College in June 1927 with an A.B. Degree. During this time she completed nine courses in psychology for a total of twenty-eight credits. In 1927-28 she took courses in history at Columbia University, Graduate Faculty of Arts and Sciences. From 1927 to 1945 she was a licensed teacher in the City of New York and taught history and economics in the New York high school system. (3.) *fn2"

 2. In 1934, plaintiff took a course at the New School For Social Research entitled, "General Principles of Psychoanalysis." (3.)

 3. In 1949, plaintiff enrolled as a student in the Department of Psychology, New York University Graduate School of Arts and Sciences. Upon completion of nine courses in psychology for a total of thirty-three credits and the publication of a certain thesis, she was awarded an A.M. Degree in June 1952.

 4. From 1951 to 1953, plaintiff worked in the Mt. Sinai Hospital as a research assistant in psychology. From 1952 to 1953, she attended the New York Psychoanalytic Institute and completed a course in "Psychoanalytic Concepts in Education." From 1953-1955, plaintiff worked at Mt. Sinai Hospital as a psychologist engaged largely in research and diagnostics. (4.)

 5. At Mt. Sinai Hospital in the period between 1951 and 1955, while plaintiff was employed there, psychologists were permitted to do diagnostic work and research (555) and participate in clinical conferences, but were not permitted to do psychotherapy. Plaintiff did not engage in any psychotherapy at Mt. Sinai. (556.) At Mt. Sinai the rule was that only medical doctors were permitted to do psychotherapy. (257-58.)

 6. From 1956 through 1959, plaintiff worked at the Hillside Hospital, Queens, New York, as a psychologist engaged in research and diagnostics. (4) During the period plaintiff was at the Hillside Hospital, the hospital did not permit psychologists to engage in psychotherapy or treatment of patients. (253-58, 346.)

 7. On May 1, 1957, plaintiff was certified as a psychologist by the New York State Education Department (4) under a provision which required at least an M. A. Degree and eight years of experience, whereas all other persons were required to have a Ph. D. Degree. (503-4.)

 8. In 1957, plaintiff was accepted into the training program of the National Psychological Association for Psychoanalysis, Inc. (hereinafter "NPAP"). From 1957 through 1959, NPAP was a professional association organized for the advancement of psychoanalysis as a profession and as a science. Its major activities consisted of a membership society for practicing psychoanalysts and a training program for student affiliates. (Ex. 7, p. 4; Ex. 8, p. 4; see also 609-10.) In 1957, in order to qualify for enrollment at NPAP, an applicant was required (1) to hold a Master's Degree in a field of inter-personal relations; (2) to be of a minimum age of twenty-five years; (3) to undergo a personal analysis of three hours per week. (Ex. 7, p. 7). In an enrollment questionnaire filed by plaintiff as part of the processing of her application, she referred to previous clinical work and experience only in diagnostics and research, and in stating her anticipated goal of studies at the NPAP she wrote: "to become a psychoanalyst and member of the NPAP." (Ex. 4.) During the period of her enrollment in the NPAP, plaintiff underwent personal analysis with Dr. Edward Frankel, a member of the faculty of NPAP. (4, 5.) On August 22, 1957, plaintiff was interviewed by Dr. Nandor Fodor with respect to her enrollment application. (Ex. C.) Plaintiff in this application stated that her clinical work was restricted to diagnosis and testing and that she had not been permitted to do therapy at hospitals, that she was "tired of this" and felt she could do therapy. (Ex. C.)

 9. September 5, 1957, plaintiff was accepted as an enrolled student at NPAP. (Ex. I.) Between 1957 and 1959 NPAP required students to complete at least thirty courses, including a minimum of eight advanced seminars and, as aforesaid, to undergo a successful personal analysis to complete the program to become an associate member and a psychoanalyst. (Ex. 7, p. 7.)

 10. Didactic analysis is a teaching analysis and at NPAP in 1957 and 1958 it was part of the training of the student to undergo didactic analysis. (610-12.) During the period of plaintiff's enrollment as a student at NPAP she underwent personal psychoanalysis with Dr. Edward Frankel, a member of the faculty of NPAP (4-5), from September 1957 to June 1959. On or about October 13, 1960, a letter signed by Edward Frankel, Ph. D. was submitted on behalf of plaintiff to the Internal Revenue Service (298-300), which letter, addressed "To Whom It May Concern," reads: "This is to state that ...

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