The opinion of the court was delivered by: LEVET
Opinion, Findings of Fact and Conclusions of Law
This is an income tax refund action commenced by plaintiffs pursuant to 28 USC § 1346(a)(1) in which they seek the return of some $2,060.98. The real party in interest is Milushka Binder (also known at times as Mileva Binder). Her husband is named only because the income tax returns for the years in question were filed in their joint names.
The basis of plaintiff's action is that she alleges she is entitled to a net operating loss deduction for the years 1955, 1956, 1957 and 1958 based upon an alleged operating loss sustained in the year 1958.
By order of the court the issue of any liability on the part of the defendant, United States of America, to return any tax paid was tried first and the question of any valuations and amounts in connection therewith was deferred (SM 10, 11).
After hearing the testimony of the parties, examining the exhibits, pleadings, briefs and Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. This action was commenced pursuant to 28 USC § 1346(a)(1) to recover income taxes paid by the plaintiffs for the years 1955, 1956, 1957 and 1958 in the total amount of $2,060.98.
2. Plaintiff Milushka Binder was born on December 11, 1896, in what is now Yugoslavia.
3. In or about 1939, plaintiff purchased certain real property in Belgrade, Yugoslavia, located at No. 5 Djure Djakovica Street in said city. In 1940, the building on this property was torn down and in 1941 a new building was erected.
4. In this newly erected building at said location there were 14 apartments, with a total of 27 rooms, which were rented to tenants. No rent was collected by plaintiff.
5. Plaintiff left Belgrade and Yugoslavia on September 20, 1941, apparently because of the invasion of Yugoslavia by Germany, going first to Italy, then to Switzerland, and from Switzerland to the United States. Plaintiff never returned to Yugoslavia.
6. At the time plaintiff left Yugoslavia in 1941, she appointed one Brana Milenkovic, a lawyer of Belgrade, as her agent to manage the property.
7. Milenkovic died sometime before 1946; plaintiff received no rents nor any correspondence from this agent.
8. After hearing of the death of Milenkovic, plaintiff, by a power of attorney dated January 14, 1946, appointed her brother-in-law, one Ivan Binder, as her agent to manage the property in Belgrade.
9. The said Ivan Binder was unable to collect any rents from the property and there is no proof that he ever managed the property. No other person besides Ivan Binder was authorized to manage the property. Plaintiff never sent any monies to Belgrade to pay on account of mortgages or make ...