Hesslein v. Hoey (18 F. Supp. 169, 1937)

GODDARD, District Judge.

This is a motion to dismiss the complaint herein on the ground, that it does not set forth facts sufficient to constitute a cause of action. The action is one against the collector of internal revenue for the Second district of New York to recover the amount of a gift tax for 1934 alleged to have been illegally collected.

It appears from the complaint, and the trust indenture, and claim for refund, made a part of the complaint, that the plaintiff, Edgar J. Hesslein, on December 20, 1934, transferred to three individuals in trust 2,000 shares of preferred stock of Neuss-Hesslein & Co., Inc., of the value of $290,000; that subsequently the plaintiff filed with the defendant on March 15, 1935, a federal gift tax return for the calendar year 1934 showing no tax due. The Commissioner of Internal Revenue later determined that the transfer in trust was taxable under the Gift Tax Act of 1932 in the amount of $11,154.95, and on or about May 6, 1936, the plaintiff paid such tax plus interest o.f $764.12. On May 13, 1936, plaintiff filed a claim for refund on this amount, which claim was rejected by the Commissioner on