X. FEES RULE 82. FOR FILING PETITIONS Except for petitions filed under Rule 22 (a), a fee of $10 shall be paid at the time of filing of any petition, but the Court may fix a fee of $5 in any case where upon written application it is shown that the case involves less than $300 and that it is not a class case. If, in any case, a fee of $5 is authorized by an order of the Court and the judgment of the Court is for $300 or more, an additional amount of $5 shall be paid to the Clerk of the Court before a transcript of the judgment is furnished. At the time of the filing of a petition under Rule 22 (a), there shall be paid a fee of $10 plus $1 for each party plaintiff (other than the first party plaintiff named in the petition) demanding a separate judgment. RULE 83. IN CASES APPEALED TO THIS COURT Except on appeals by the United States, a filing fee of $10 shall be collected by the Clerk in all cases filed in the United States Court of Claims on appeal from decisions of the Indian Claims Commission, and on cases appealed from the United States District Courts under Title 28, United States Code, Sec. 1504. RULE 84. FOR RECORD ON CERTIORARI A fee of 10 cents a folio is fixed for preparing and certifying a transcript of the record for the purpose of a writ of certiorari sought by the plaintiff and for furnishing certified copies of judgments or other documents in cases: Provided, That this fee shall not be applicable to such portions of the record, proceedings, or evidence as are prepared and furnished to the Clerk for certification to the Supreme Court in accordance with Rule 57, except that in all cases a fee of not less than $5 shall be charged for certifying a record in any one case to the Supreme Court. RULE 85. FOR COPIES For each certified copy of findings of fact and opinion of the Court, a fee of 25 cents is fixed for 5 pages or less; 35 cents for those over 5 and not more than 10 pages; 45 cents for those over 10 and not more than 20 pages; and 50 cents for those of more than 20 pages; and 10 cents for each uncertified copy. RULE 86. EFFECTIVE DATE These rules will take effect on October 15, 1953. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the Court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies. IN THE UNITED STATES COURT OF CLAIMS September 1, 1953, to December 31, 1953, and other cases not heretofore published. Opinions are not ordinarily published until final judgment is rendered. Cases in which motions have been filed are not published until disposition of such motions. MAX MAYER v. THE UNITED STATES [No. 47980. Decided April 7, 1953. Plaintiff's motion denied On the Proofs Income tax; deduction claimed for loss of property owned in Germany and expropriated by the Hitler regime.—In a suit by a naturalized American citizen, born in Germany, to recover income tax alleged to have been overpaid for 1941 on the ground that he was entitled to deduct from his gross income for that year, either as a war loss or as a casualty loss, the value of certain personal property which he claims he owned but which remained in Germany and in Czechoslovakia when he came to the United States in 1939, and which he was never again able to secure; it is held that plaintiff is not entitled to recover. Internal Revenue & 597 Same; property in enemy country on date of declaration of war.In his claim for refund, which was denied by the Commissioner, plaintiff claimed deduction under the provisions of Section 127 of the Internal Revenue Code which provides that property within any country at war with the United States, or within the area under the control of any such country, on the date when war was declared by the United States shall be deemed to have been destroyed or seized on the date war with such country was declared by the United States. War with Germany was declared on December 11, 1941 (55 Stat. 796). Internal Revenue 597 Same; tax deduction is a legislative grant.-A tax deduction is a matter of legislative grant and to be entitled thereto the taxpayer must bring himself clearly within the provisions allowing the deduction. Internal Revenue 501 Same; paintiff's property forfeited prior to declaration of war.-The plaintiff, who is of Jewish descent, entered the United States as a German national in 1939, with the intention of residing 284483-54- -8 1 Opinion of the Court 126 C. Cls. in this country permanently, which he has done. The property involved in the instant case was located in Germany and that part of Czechoslovakia known as Bohemia. By reason of the decrees and directives of the Hitler regime directed against the Jews in the 1930's, it was difficult for them to deal with their property and under the decree of November 25, 1941, German nationality was taken away from Jews living abroad and their property forfeited to the Reich. This decree applied to the plaintiff. In the light of this decree, it is held that the plaintiff did not retain a sufficient interest in the property involved so that on December 11, 1941, he could sustain a loss within the provisions of Section 127 (26 U. S. C. 127). Internal Revenue 597 Same; alternative ground not asserted in claim for refund filed with Commissioner.-Where the plaintiff has included an alternative ground for recovery under Section 23 (e) (3) of the Internal Revenue Code (26 U. S. C. 23 (e) (3)), it is held that having failed to assert this basis for recovery in his claim for refund filed with the Commissioner of Internal Revenue, the plaintiff may not rely on this section in a suit in the United States Court of Claims. See Real Estate Title Co. v. United States, 309 U. S. 13; Hopkins v. United States, 113 C. Cls. 217. Internal Revenue 2028 The Reporter's statement of the case: Plaintiff's motion for rehearing, amendment of findings of fact and conclusion of law was denied and the opinion of April 7, 1953, was modified, all as shown in the opinion by Judge Littleton of October 6, 1953, denying plaintiff's motion. Mr. Monte Appel for the plaintiff. Messrs. Blair, Korner, Doyle & Appel, were on the brief. Mr. Joseph H. Sheppard, with whom was Mr. Acting Assistant Attorney General Charles S. Lyons, for the defendant. Mr. Andrew D. Sharpe was on the brief. LITTLETON, Judge, delivered the opinion of the court: The plaintiff, a naturalized American citizen born in Germany, seeks to recover income tax in the amount of $8,386.23 alleged to have been overpaid for 1941 on the ground that he was entitled to deduct from his gross income for that year, either as a war loss or as a casualty loss, the value of certain personal property which he claims he owned, but which remained in Germany and Czechoslovakia when 1 Opinion of the Court he came to the United States in 1939. This property consisted of house furnishings in storage in Czechoslovakia, stocks and bonds held by banks in Czechoslovakia and Germany, and deposits of money in banks in both of those countries. The plaintiff never recovered any of this property. The house furnishings were accumulated by the plaintiff and his wife over a period of many years beginning with their marriage in 1911. From 1930 to 1935 the plaintiff lived in Aussig, Czechoslovakia, in a large house made available to him by United Chemical and Metallurgical Works, hereinafter referred to as United Chemical, a large chemical company having many factories throughout Europe. As the president of this company, it had been part of plaintiff's duties to receive prominent visitors and to entertain in his home on a lavish scale. For that purpose and for his own comfort and pleasure, the plaintiff's home was luxuriously furnished with expensive antique and modern furniture, all in keeping with refined living and a cultural background. When the United Chemical moved its headquarters from Aussig to Prague on December 31, 1935, the plaintiff resigned his position as head of the company and went to Zurich, Switzerland, in the early part of 1936. However, under a special contract with the company he continued to serve as an advisor and do special work. This necessitated his staying in Aussig at least four months a year where a smaller house was made available to him, into which he moved part of his furnishings. The remainder of his furnishings were moved to Zurich. In the middle of 1938 the plaintiff made arrangements with Radler and Assmann, a storage and moving firm in Aussig, to move the furnishings of the smaller house to Switzerland. However, because of the prevailing conditions, including Hitler's attitude and directives, the storage firm was unable to move the furnishings. Shortly after the Germans entered Aussig, in October 1938, German officials required the furniture to be moved from the smaller house. After being first placed in an apartment belonging to United Chemical, the furnishings were, in the early part of 1939, placed in a warehouse of Radler and Assmann. Although the plaintiff during January and February 1939 contacted the storage firm by mail and phone, all efforts to have the furnishings shipped to Switzerland or the United States were unsuccessful. The plaintiff was last in Aussig |