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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
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