Kendall H. Shoyer and Agnes P. Shoyer v. United States , 290 F.2d 817 ( 1961 )

290 F.2d 817

61-1 USTC P 9455

Kendall H. SHOYER and Agnes P. Shoyer, Appellants
v.
UNITED STATES of America

No. 13521.

United States Court of Appeals Third Circuit.

Argued May 4, 1961.
Decided May 16, 1961.

Gordon W. Gerber, Philadelphia, Pa. (Kenneth W. Gemmill, Wesley E. Forte, Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., on the brief), for appellants.

Morton K. Rothschild, Washington, D.C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harry Baum, Attorneys, Department of Justice, Washington, D.C., Walter E. Alessandroni, U.S. Atty., Henry R. Heebner, Jr., Asst. U.S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before GOODRICH, STALEY and FORMAN, Circuit Judges.

PER CURIAM.

1

This is an appeal from a judgment for the Government in an action by a taxpayer to recover taxes which he paid following an assessment for a deficiency. The taxpayer (with his wife joined because they made a joint return) deducted from his 1953 income tax a sum which he had spent as a candidate for reelection to judicial office. He was appointed for an interim term by the Governor and under Pennsylvania law ran for election the next year. The expenditure was reasonable in amount, in fact, very modest. There is no question as to the accuracy of the deduction claimed.

2

With all sympathy for a fellow judge who, unlike a federal judge, has to seek reelection, we do not think this question is open. The compelling authority is McDonald v. Commissioner, 1944, 323 U.S. 57, 65 S.Ct. 96, 89 L.Ed. 68. It is true that the McDonald case was decided when the Dobson rule was in effect. Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. But the question in the McDonald case was not one which Dobson concerned in any way whatever. The taxproblem, therefore, is the same now as it was at the time McDonald was decided. Nor do we think that the fact that the taxpayer had a favorable endorsement in a plebiscite by the Philadelphia Bar Association imposes any duty on him to pay out money in running for office. At most it gives him a favorable recommendation to the voting public by an organization which knows more about his work than the public does.

3

The judgment of the district court will be affirmed.