Page images


Findings of Fact

recovery could be had under section 23 (k) went on to state concerning recovery under section 23 (f):

* Whether petitioner has satisfied those requirements we do not decide, for its claim for refund was based exclusively and solely on the ground that it was entitled to an allowance for obsolescence. Hence in absence of a waiver by the government or a proper amendment, petitioner is precluded in this suit from resting on another ground.

* **

This court in John Randolph Hopkins v. United States, 113 C. Cls. 217, 229, relied on the Real Estate case in rejecting the taxpayer's effort to assert for the first time in this court a basis for recovery not contained in his claim for refund filed with the commissioner. There we stated:

The first ground for recovery, asserted herein, was not made the basis of either the refund claim filed in May 1937, or the one filed in April 1939, and cannot, therefore, be allowed even if there had been such a transaction as would come within the capital gains provisions. See also on this point Stewart v. United States, 99 C. Cls.


We hold, therefore, that having failed to assert section 23 (e) (3) as a basis for recovery in his claim filed with the Commissioner, the plaintiff may not now rely on such section in his suit here. Hence, we find it unnecessary to decide whether the loss sustained by the plaintiff comes within the provisions of this section. The petition is therefore dismissed.

It is so ordered.

HOWELL, Judge; MADDEN, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur.


The court makes findings of fact, based upon the evidence, the report of Commissioner Richard H. Akers, and the briefs and argument of counsel, as follows:

1. The plaintiff duly filed his Federal income tax return for the calendar year 1941 on March 7, 1942. In that return he reported a gross income of $32,454.94, deductions of $3,123.10, net income of $29,331.84, and a tax payable of

126 C. Cls.

Findings of Fact

$8,386.23, which was duly assessed by the Commissioner. The plaintiff paid the entire tax of $8,386.23 on March 9, 1942. On September 23, 1942, the plaintiff filed a claim for refund of the entire amount of taxes paid for the year 1941 on the ground that he had sustained certain war losses either on account of confiscation or seizure of his property which he had not claimed in his return. The Commissioner rejected that claim by statutory notice dated October 16, 1945.

2. The plaintiff was born a German citizen on March 7, 1881, in Ulm, Germany. He was of Jewish descent. He received his elementary and higher education in Ulm and continued his education at the University of Munich and later at Heidelberg, from which latter university he received the degree of Doctor of Philosophy in 1902. After some further study in Karlsruhe, Germany, he was appointed first an instructor and later an assistant professor on the staff at a technical school in Germany where he remained for three years. In 1909 he gave up the profession of teaching and accepted an executive position with the Welsbach Company, a large chemical and manufacturing company in Berlin. In 1921 he resigned his position with the Welsbach Company to become director general (a position comparable to that of a president of a corporation in the United States) of the United Chemical and Metallurgical Works (hereinafter sometimes referred to as "United Chemical") in Czechoslovakia. United Chemical was a large company with many factories in different parts of Europe.

3. As head of United Chemical, the plaintiff lived in Karlsbad, Czechoslovakia, from 1921 until 1930, and from 1930 to 1935 in Aussig, Czechoslovakia. As head of that company he was paid the equivalent in American dollars of about $100,000 a year. United Chemical paid all income and other taxes on the plaintiff's salary so that he received his entire salary without any deduction on account of taxes. In addition, United Chemical furnished to the plaintiff rent-free a large dwelling house which it owned and also furnished to him two servants, a gardener and a chauffeur.

It was part of the plaintiff's duties as head of the organization to receive prominent visitors and to entertain in his home lavishly and on a large scale. For that purpose

[ocr errors]


Findings of Fact

and for his own comfort and pleasure, the plaintiff furnished his home luxuriously with antique and modern furniture, expensive and rare rugs, oil paintings and etchings, a library of some 2,500 books many of which were special editions and collectors' items, and fine glass, china, silver, and linens for service, all in keeping with refined living and a cultural background.

4. On December 31, 1935, when the headquarters of United Chemical were moved from Aussig to Prague, the plaintiff resigned his position as head of the company and went to Zurich, Switzerland, in the early part of 1936. At the time of his resignation, he had been for some time a director of the company which office he continued to hold and, in addition, he made a special contract with the company to advise them and do certain special work. Under that contractual arrangement, he was obliged to stay in Aussig, Czechoslovakia, at least four months a year. In connection with that arrangement, United Chemical made available to the plaintiff, in Aussig, a home, smaller than the large house which the plaintiff had previously occupied, so that when the plaintiff came to Czechoslovakia for the required four months each year he would have a place in which to live. The smaller house was registered as the residence of the plaintiff's daughter but she spent most of her time in France. The plaintiff's son lived in the smaller house until he came to this country on October 10, 1937. In the plaintiff's absence from Aussig, the smaller house was maintained by the plaintiff's chauffeur and housekeeper, a Mr. and Mrs. Seifert, until late in 1938 when the plaintiff's furnishings were removed therefrom, as hereinafter shown.

The plaintiff resigned as a director of United Chemical on December 31, 1938, and as a consultant to the company on March 31, 1939.

5. When the plaintiff went to Zurich, Switzerland, in the early part of 1936, as shown in the preceding finding, he had a part of his furniture which was in the large house heretofore referred to moved to Zurich and the remainder of the furniture moved into the smaller house in Aussig. The moving was done by Radler and Assmann, a moving and storage company in Aussig. At that time he purchased certain

126 C. Cls.

Findings of Fact

additional furnishings for the smaller house. From the early part of 1936 until September 1938, the plaintiff spent four and sometimes five months each year in the smaller house in Aussig. In the middle of 1938, he made arrangements with Radler and Assmann to move the furniture which he had left in the smaller house to Switzerland. At or about that time he secured a permit from the Swiss authorities to bring his furniture into Switzerland. That permit was originally due to expire October 31, 1938, but it was extended a month or two. However, because of prevailing conditions, including Hitler's attitude and directives, Radler and Assmann were unable to move the furniture. The plaintiff was in Aussig for the last time on September 8, 1938, at which time his furniture and furnishings which he had left in Aussig were still in the smaller house.

Shortly after the Germans came into Aussig about October, 1938, they required the plaintiff's furniture to be moved from the smaller house in order that they might use the house for themselves. The furniture was first moved to a factory of the United Chemical, next to an apartment owned by United Chemical and, when the Germans desired the apartment, it was moved in the early part of 1939 by Radler and Assmann to a storage warehouse of Radler and Assmann.

6. In the meantime, the plaintiff had been making inquiries in regard to his furniture with the view of taking a substantial part of it to the United States and on January 25, 1939, received the following letter from Mrs. Seifert, heretofore referred to in finding 4:

Thank you for your letter. The furniture was stored on Monday. Now I will inform you about the contents of the cases. Cases No. 1-9 contained the books of Dr. Max Mayer; Cases No. 10 and 11 contained the books of Albert.

Case No. 12
Case No. 13
Case No. 14

Case No. 15
Case No. 16

Bed linen and kitchen towels.

Hand towels, large table cloths, napkins.
Embroidered table cloths and lace center-


Infant clothes.

Writing table accessories of Mrs. Mayer and Miss Hilde; Albert's and Hilde's


Case No. 17 Pictures and glass tops.


Findings of Fact

Case No. 18 Chandeliers from dining room and living
room; candles and bulbs for chandelier;
1 glass top.

Case No. 19 Porcelain table service with silver rims.
Ornaments from hall.

All glass services.

Case No. 20
Case No. 21 Marked S. Silver and bronzes.
Trunk containing curtains (and drapes), dresses, bath-
ing suits, wrappers, towels, etc.

If the goods are to be sent to America, they must be repacked into other cases; I assume Mr. Assmann has informed you about all this. Also the oriental rugs were stored with the other goods because they must be there in care of a control. Things are difficult because of rigid controls. The help of Trude has also had many difficulties and had no results so far. I have given her the glass. Let us hope that things are now straightened out.

I inquired about the couch, the chandelier, and the shoe cabinet. They intend to take them. I am not going to unpack again because of Mrs. Rosler because she seems to prefer dresses. There was only one bed, which I received. Ella already has her belongings at home. There is still a round table and the oval table from the hall which were intended not to be moved. I did not send any pictures to Gottfried because I did. not know which ones to send. I have them packed in Albert's cases. It is a difficult task. If you had been here it would have been so much easier.

I hope I managed everything to your satisfaction and hope that we shall see each other once more. Then I will report orally, Mrs. Mayer. The packer who had also done the packing when we moved before, has asked me for a tip. How much shall I give him? I assume I wrote everything you had to know. I remain with kind regards, also for Dr. Mayer and Miss Hilde.

7. On January 26, 1939, Radler and Assmann wrote the plaintiff as follows:

Today Miss Thomas called on us with regard to the transportation of the household goods from Aussig to Zurich.

We gave Miss Thomas the requested information. However, we think it would be better to be in direct touch with you.

It is necessary to obtain a permit from the SubPrefect for the transportation of your household goods; in ad

« PreviousContinue »