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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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