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CROSS v. UNITED STATES

January 28, 1966

Ephraim Cross and Mary Cross, Plaintiffs
v.
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:

 This is an action brought to recover $519.62 in taxes alleged to have been illegally and erroneously collected. The plaintiff, Ephraim Cross, *fn1" complains of the disallowance by the Commissioner of Internal Revenue of a deduction of $1,300 on his income tax return for 1954. The amount deducted is claimed to have been expended by plaintiff on a trip to Europe during the summer of 1954. Summary judgment for plaintiff was granted, 222 F. Supp. 157 (S.D.N.Y. 1963). The Court of Appeals reversed, 336 F.2d 431 (2nd Cir. 1964). The case came on for trial before this court, sitting without a jury. Now, upon hearing all the testimony, studying the exhibits, the briefs, and the proposed findings of fact and conclusions of law submitted by counsel, I make the following Findings of Fact and Conclusions of Law:

 Findings of Fact

 1. Plaintiff in 1954 was a teacher at the City College of New York, holding a rank of less than full professor. (139) *fn2" Plaintiff had been regularly employed as a teacher at City College since 1932. (6) 2. During the twelve-year period commencing with the Fall Semester of 1945 and ending with the Spring Semester of 1957, inclusive, plaintiff taught courses as follows: Spanish courses 60 French courses 13

 (100-113; Exhibits C, C-1-3, 5-15, 17-30) While nearly all these courses were on an elementary or intermediate level, plaintiff did teach one course in 1957 on the development of Spanish from Latin. (Ex. B)

 3. In his French courses plaintiff, prior to 1954, was already distinguishing between Parisian pronunciation and that of the south of France or other outlying areas such as North Africa. Plaintiff taught his students Parisian pronunciation. (120, 186)

 4. On June 30, 1954, plaintiff left New York on a French freighter accompanied by his wife and his dog, Trixie. (7, 83, 84) The ship called at Lisbon, Casablanca, Tangier, Oran, Algiers, Naples and Genoa, arriving at Marseilles on July 21, 1954. (7, 8)

 5. Plaintiff spent no more than fractions of three days at any of the ports before arrival at Marseilles, and usually spent only a fraction of a day or two at each port. (7, 8) At each intermediate port plaintiff went shopping and sight-seeing. He bought books and souvenirs. Several times he struck up conversations or asked directions. Several times he took bus or taxi rides during which he conversed with the driver. Several times he conversed with book sellers. (7, 8, 11-14, 141-150) Apparently the conversations in Lisbon were in Portuguese. (11) The conversations in Casablanca and Tangier were in Spanish and French. (12) The conversations in Oran and Algiers were in French. (13) There is no testimony as to the language in which conversations in Italy were conducted.

 6. In Casablanca, the language spoken by most people is Arabic. Professor Cross was unsure whether Arabic or French is spoken by most people in Tangier, Oran and Algiers, though the language of the countries in which these ports lie is Arabic. (85-88)

 7. Other notable events before arrival at Marseilles included the visiting of a school in Morocco at which Spanish and French were spoken (89, 90), the attendance of movies in Italy (88), and the attendance of a speech delivered in French at a Bastille Day celebration in Algiers. (13, 148-49)

 8. Plaintiff, his wife, and Trixie arrived in Marseilles on July 21, 1954, as stated. There they remained until July 27, 1954, lodged at the Grand Hotel Mediteranee, along with a lady friend of the wife, whose bill Professor Cross paid. (8, 19, 123) While at Marseilles plaintiff did some traveling in the area. He also visited shops, both book shops and novelty shops. At the novelty shops he bought some small things. At the book shops, plaintiff bought some books and engaged in conversation about the books. Plaintiff also engaged in a conversation with some workers in the port regarding French and American social conditions. (14-15, 150-52)

 9. Plaintiff, his wife, Trixie, and the lady friend then went to Le Lavandou, a small beach resort on the Mediterranean, where they stayed for twenty-four days. (15, 33, 120-21; Ex. 6) Plaintiff was disappointed in the beach. (120-21) Nevertheless, he spent about an hour a day on ten separate days there. (121) While at LeLavandou plaintiff also went sight-seeing, drove through the town and to a neighboring town. He went to book shops and other shops, made purchases, went to meetings, entertainments, became acquainted with some officials of the town and the military, and was presented with a book. Plaintiff and his wife also met a French ...


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