Opinion
No. 17479.
March 6, 1963.
Watkins, Lund Peck, Henry C. Diehl and John H. Hall, Los Angeles, Cal., for appellant.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Fred E. Youngman and Harold C. Wilkenfeld, Attys., Dept. of Justice, Washington, D.C.
Francis C. Whelan, U.S. Atty., Walter S. Weiss, Asst. U.S. Atty., Chief, Tax Section, and Loyal E. Keir, Asst. U.S. Atty., Los Angeles, Cal., for appellee.
Before BARNES and JERTBERG, Circuit Judges, and PENCE, District Judge.
This is an appeal involving alleged overpayment of Federal taxes for certain years. The government's motion for summary judgment was granted in the district court.
Under the stipulated facts, and the holding of Millinery Center Bldg. Corp. v. Commissioner, 2 Cir. 1955, 221 F.2d 322, we conclude that summary judgment is not the proper procedure to follow in this case; that the cause should be heard, and appellant be given an opportunity to prove, if it can, it is entitled for depreciation purposes to some allocation of the purchase price between the land and the building. And see World Publishing Co. v. Commissioner, 8 Cir. 1962, 299 F.2d 614.
Remanded.