Time: Thu May 29 22:22:42 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id WAA13415; Thu, 29 May 1997 22:14:20 -0700 (MST) by usr02.primenet.com (8.8.5/8.8.5) with SMTP id WAA27903; Thu, 29 May 1997 22:14:11 -0700 (MST) Date: Thu, 29 May 1997 22:19:17 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Stratton v. Howbert (2 of 2) (fwd) >Date: Fri, 30 May 1997 00:41:00 -0400 >From: "Dr. Braces" <drbraces@smart1.net> >Organization: SouthFlorida Orthodontics >To: pmitch@primenet.com >Subject: strat v howbert part 2 > >-- Woodenware Co. v. United States, 106 U. S. 432, 27 L. ed. 230, 1 Sup. >Ct. > Rep. 398, and cases cited; Benson Min. & Smelting Co. v. Alta Min. & >Smelting > Co. 145 U. S. 428, 434, 36 L. ed. 762, 765, 12 Sup. Ct. Rep. 877, 17 >Mor. > Min. Rep. 488; Pine River Logging & Improv. Co. v. United States, 186 >U. S. > 279, 293, 46 L. ed. 1164, 1171, 22 Sup. Ct. Rep. 920; United States v. >St. > Anthony R. Co. 192 U. S. 524, 542, 48 L. ed. 548, 555, 24 Sup. Ct. Rep. >333; > Martin v. Porter (1839) 5 Mees. & W. *422 352, 2 Horn. & H. 70, 17 Eng. > Rul. Cas. 841, 10 Mor. Min. Rep. 75; Jegon v. Vivian (1871) L. R. 6 Ch. >742, > 760, 40 L. J. Ch. N. S. 389, 19 Week. Rep. 365, 17 Eng. Rul. Cas. 843, >8 > Mor. Min. Rep. 628; Livingstone v. Rawyards Coal Co. (1880) L. R. 5 >App. Cas. > 25, 34, 42 L. T. N. S. 334, 28 Week. Rep. 357, 44 J. P. 392, 10 Mor. > Min. Rep. 291; Coal Creek Min. & Mfg. Co. v. Moses, 15 Lea, 300, 54 Am. >Rep. > 415, 15 Mor. Min. Rep. 544; Winchester v. Craig, 33 Mich. 205. See >also > English and American Notes to Martin v. Porter, and Jegon v. Vivian, 17 >Eng. > Rul. Cas. 873, 876, etc. We are not at this time concerned with this >vexed > question, beyond saying that the rules applicable to trespassers can >have only > a modified application to the case of a mine owner conducting mining >operations > upon its own lands, where the question is,--What is the income derived >from the > business?--and the incidental question,--What is the reasonable >depreciation, > if any, of the mining property? > What has been said necessitates a negative answer to the third >question as > certified. And we shall not go further into the question of >depreciation. The > case comes here under s 239, Judicial Code [36 Stat. at L. 1157, chap. >231, U. > S. Comp. Stat. Supp. 1911, p. 228] (derived from s 6 of the Evarts act, >26 > Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549). It is >established > that in the exercise of this jurisdiction this court, unless it see >occasion to > require the whole record to be sent up for consideration, is to make >answer > respecting the several propositions of law that are certified, and is >not to go > into questions of fact, or of mixed law and fact. Our Rule 37 requires >that > the certificate shall contain a proper statement of the facts upon >which the > questions of law arise, and we deal with the facts as thus certified, >and not > otherwise. Graver v. Faurot, 162 U. S. 435, 437, 40 L. ed. 1030, 1031, >16 > Sup. Ct. Rep. 799; Cross v. Evans, 167 U. S. 60, 63, 42 L. ed. 77, 78, >17 > Sup. Ct. Rep. 733; United States v. Union P. R. Co. 168 U. S. 505, 512, >42 > L. ed. 559, 561, 18 Sup. Ct. Rep. 167; Emsheimer v. New Orleans, 186 U. >S. > 33, 46 L. ed. 1042, 22 Sup. Ct. Rep. 770; Cincinnati, H. & D. R. Co. v. > McKeen, 149 U. S. 259, 37 L. ed. 725, 13 Sup. Ct. Rep. 840. > It would therefore be improper for us at this time to enter into the >question > whether the clause, 'a reasonable allowance for depreciation of >property, if > any,' calls for an allowance on that account in making up the tax, >where > *423 no depreciation is charged in practical bookkeeping; or the >question > whether depreciation, when allowable, may properly be based upon the >depletion > of the ore supply estimated otherwise than in the mode shown by the >agreed > statement of facts herein; for to do this would be to attribute a >different > meaning to the term 'value of the ore in place' than the parties have >put upon > it, and to instruct the circuit court of appeals respecting a question >about > which instruction has not been requested, and concerning which it does >not even > appear that any issue is depending before that court. > The first and second questions certified will be answered in the >affirmative; > and the third question will be answered in the negative. > > Mr. Chief Justice White, Mr. Justice McKenna, and Mr. Justice Holmes >dissent > with respect to the answer made to the third question. > > FN Sec. 38. That every corporation, joint stock company, or >association, > organized for profit and having a capital stock represented by >shares, and > every insurance company, now or hereafter organized under the laws >of the > United States or of any state or territory of the United States, or >under > the acts of Congress applicable to Alaska or the District of >Columbia, or > now or hereafter organized under the laws of any foreign country, >and > engaged in business in any state or territory of the United States, >or in > Alaska or in the District of Columbia, shall be subject to pay >annually a > special excise tax with respect to the carrying on or doing >business by > such corporations, joint stock company or association, or insurance > company, equivalent to one per centum upon the entire net income >over and > above five thousand dollars received by it from all sources during >such > year, exclusive of amounts received by it as dividends upon stock >of other > corporations, joint stock companies or associations, or insurance > companies, subject to the tax hereby imposed; or if organized under >the > laws of any foreign country, upon the amount of net income over and >above > five thousand dollars received by it from business transacted and >capital > invested within the United States and its territories, Alaska, and >the > District of Columbia during such year, exclusive of amounts so >received by > it as dividends upon stock of other corporations, joint stock >companies or > associations, or insurance companies, subject to the tax hereby >imposed; > provided, however, that nothing in this section contained shall >apply to > labor, agricultural or horticultural organizations, or to fraternal > beneficiary societies, orders, or associations operating under the >lodge > system, and providing for the payment of life, sick, accident, and >other > benefits to the members of such societies, orders, or associations, >and > dependents of such members, nor to domestic building and loan >associations, > organized and operated exclusively for the mutual benefit of their >members, > nor to any corporation or association organized and operated >exclusively > for religious, charitable, or educational purposes, no part of the >net > income of which inures to the benefit of any private stockholder or > individual. > Second. Such net income shall be ascertained by deducting from the >gross > amount of the income of such corporation, joint stock company or > association, or insurance company, received within the year from >all > sources, (first) all the ordinary and necessary expenses actually >paid > within the year out of income in the maintenance and operation of >its > business and properties, including all charges such as rentals or >franchise > payments, required to be made as a condition to the continued use >or > possession of property; (second) all losses actually sustained >within the > year and not compensated by insurance, or otherwise including a >reasonable > allowance for depreciation of property, if any, and in the case of > insurance companies the sums other than dividends, paid within the >year on > policy and annuity contracts, and the net addition, if any, >required by law > to be made within the year to reserve funds; (third) interest >actually paid > within the year on its bonded or other indebtedness to an amount of >such > bonded and other indebtedness not exceeding the paid-up capital >stock of > such corporation, joint stock company or association, or insurance >company, > outstanding at the close of the year, and in the case of a bank, >banking > association, or trust company, all interest actually paid by it >within the > year on deposits; (fourth) all sums paid by it within the year for >taxes > imposed under the authority of the United States or of any state or > territory thereof, or imposed by the government of any foreign >country as a > condition to carrying on business therein; (fifth) all amounts >received by > it within the year as dividends upon stock of other corporations, >joint > stock companies or associations, or insurance companies, subject to >the tax > hereby imposed; provided, that in the case of a corporation, joint >stock > company or association, or insurance company, organized under the >laws of a > foreign country, such net income shall be ascertained by deducting >from the > gross amount of its income received within the year from business > transacted and capital invested within the United States and any of >its > territories, Alaska, and the District of Columbia, (first) all the >ordinary > and necessary expenses actually paid within the year out of >earnings in the > maintenance and operation of its business and property within the >United > States and its territories, Alaska, and the District of Columbia, >including > all charges such as rentals or franchise payments required to be >made as a > condition to the continued use or possession of property; (second) >all > losses actually sustained within in the year in business conducted >by it > within the United States or its territories, Alaska, or the >District of > Columbia, not compensated by insurance or otherwise, including a >reasonable > allowance for depreciation of property, if any, and in the case of > insurance companies the sums other than dividends, paid within the >year on > policy and annuity contracts, and the net addition, if any, >required by law > to be made within the year to reserve funds; (third) interest >actually paid > within the year on its bonded or other indebtedness to an amount of >such > bonded and other indebtedness, not exceeding the proportion of its >paid-up > capital stock outstanding at the close of the year, which the gross >amount > of its income for the year from business transacted and capital >invested > within the United States and any of its territories, Alaska, and >the > District of Columbia bears to the gross amount of its income >derived from > all sources within and without the United States; (fourth) the sums >paid by > it within the year for taxes imposed under the authority of the >United > States or of any state of territory thereof; (fifth) all amounts >received > by it within the year as dividends upon stock of other >corporations, joint > stock companies or associations, and insurance companies, subject >to the > tax hereby imposed. In the case of assessment insurance companies >the > actual deposit of sums with state or territorial officers, pursuant >to law, > as additions to guaranty or reserve funds, shall be treated as >being > payments required by law to reserve funds. > Third. There shall be deducted from the amount of the net income >of each > of such corporations, joint stock companies or associations, or >insurance > companies, ascertained as provided in the foregoing paragraphs of >this > section, the sum of five thousand dollars, and said tax shall be >computed > upon the remainder of said net income of such corporation, joint >stock > company or association, or insurance company for the year ending >December > 31, 1909, and for each calendar year thereafter; and on or before >the first > day of March, 1910, and the first day of March in each year >thereafter, a > true and accurate return under oath or affirmation of its >president, vice > president, or other principal officer, and its treasurer or >assistant > treasurer, shall be made by each of the corporations, joint stock >companies > or associations, and insurance companies, subject to the tax >imposed by > this section, to the collector of internal revenue for the district >in > which such corporation, joint stock company or association, or >insurance > company, has its principal place of business, or, in the case of a > corporation, joint stock company or association, or insurance >company, > organized under the laws of a foreign country, in the place where >its > principal business is carried on within the United States, in such >form as > the Commissioner of Internal Revenue, with the approval of the >Secretary of > the Treasury, shall prescribe, setting forth, (first) the total >amount of > the paid-up capital stock of such corporation, joint stock company >or > association, or insurance company, outstanding at the close of the >year; > (second) the total amount of the bonded and other indebtedness of >such > corporation, joint stock company or association, or insurance >company, at > the close of the year; (third) the gross amount of the income of >such > corporation, joint stock company or association, or insurance >company, > received during such year from all sources, and if organized under >the laws > of a foreign country the gross amount of its income received within >the > year from business transacted and capital invested within the >United States > and any of its territories. Alaska, and the District of Columbia; >also the > amount received by such corporation, joint stock company or >association, or > insurance company, within the year by way of dividends upon stock >of other > corporations, joint stock companies or associations or insurance >companies, > subject to the tax imposed by this section; (fourth) the total >amount of > all the ordinary and necessary expenses actually paid out of >earnings in > the maintenance and operation of the business and properties of >such > corporation, joint stock company or association, or insurance >company, > within the year, stating separately all charges such as rentals or > franchise payments required to be made as a condition to the >continued use > or possession of property, and, if organized under the laws of a >foreign > country, the amount so paid in the maintenance and operation of its > business within the United States and its territories, Alaska, and >the > District of Columbia; (fifth) the total amount of all losses >actually > sustained during the year, and not compensated by insurance or >otherwise, > stating separately any amounts allowed for depreciation of >property, and in > the case of insurance companies the sums other than dividends, paid >within > the year on policy and annuity contracts and the net addition, if >any, > required by law to be made within the year to reserve funds; and in >the > case of a corporation, joint stock company or association, or >insurance > company, organized under the laws of a foreign country, all losses >actually > sustained by it during the year, in business conducted by it within >the > United States or its territories, Alaska, and the District of >Columbia, not > compensated by insurance or otherwise, stating separately any >amounts > allowed for depreciation of property, and in the case of insurance > companies the sums other than dividends, paid within the year on >policy and > annuity contracts and the net addition, if any, required by law to >be made > within the year to reserve fund; (sixth) the amount of interest >actually > paid within the year on its bonded or other indebtedness to an >amount of > such bonded and other indebtedness not exceeding the paid-up >capital stock > of such corporation, joint stock company or association, or >insurance > company, outstanding at the close of the year, and in the case of a >bank, > banking association, or trust company, stating separately all >interest paid > by it within the year on deposits; or in the case of a corporation, >joint > stock company or association, or insurance company, organized under >the > laws of a foreign country, interest so paid on its bonded or other > indebtedness to an amount of such bonded and other indebtedness not > exceeding the proportion of its paid-up capital stock outstanding >at the > close of the year, which the gross amount of its income for the >year from > business transacted and capital invested within the United States >and any > of its territories, Alaska, and the District of Columbia, bears to >the > gross amount of its income derived from all sources within and >without the > United States; (seventh) the amount paid by it within the year for >taxes > imposed under the authority of the United States or any state or >territory > thereof, and separately the amount so paid by it for taxes imposed >by the > government of any foreign country as a condition to carrying on >business > therein; (eighth) the net income of such corporation, joint stock >company > or association, or insurance company, after making the deductions >in this > section authorized. All such returns shall, as received, be >transmitted > forthwith by the collector to the Commissioner of Internal Revenue. >END OF DOCUMENT > > > > > >With Love, Liberty and Justice for All, >Alex >http://www.drbraces.com >e-mail: drbraces@drbraces.com > >"When the people fear their government you have tyranny. >When the government fears the People, you have liberty." > Thomas Jefferson > >Liberty is NEVER an option... only a condition to be lost! > > ======================================================================== Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness email: [address in tool bar] : Eudora Pro 3.0.2 on Intel 586 CPU web site: http://www.supremelaw.com : library & law school registration ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this ========================================================================
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