W.H. Gunlocke Chair Co. v. Comm'r, 145 F.2d 791 (2d Cir. 1944)

No. 62.

Nov. 16, 1944.

Goodwin, Nixon, Hargrave, Middleton & Devans, of Rochester, N. Y. (Scott Stewart, Jr., of Rochester, N. Y., of counsel), for petitioner.

Samuel O. Clark, Jr., Asst. Atty. Gen., Sewald Key, J. Louis Monarch, and Robert Koerner, Sp. Assts. to Atty. Gen., for respondent.

Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

The Tax Court found that taxpayer’s earnings or profits were permitted to accumulate beyond the reasonable needs of the business. Under the express terms of § 102(c), this finding, if valid, created a presumption that the purpose of the accumulation was to avoid surtax upon the shareholders unless the taxpayer proved the contrary by a clear preponderance of the evidence. The Tax Court found that taxpayer had not done so. Both those findings constitute determinations of fact which, under the narrowest interpretation of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, we cannot disturb unless we consider them, as we do not, unsupported by substantial evidence. See Helvering v. National Grocery Co., 304 U.S. 282, 294, 58 S.Ct. 932, 82 L.Ed. 1346; Helvering v. Chicago Stockyards Co., 318 U.S. 693, 702, 63 S.Ct. 843, 87 L.Ed. 1086; Trico Products Corp. v. Commissioner, 2 Cir., 137 F.2d 424, 426, certiorari denied 320 U.S. 799, 64 S.Ct. 369.

Affirmed.