KENNEDY, District Judge.
Sometime prior to 1935 plaintiff taxpayer challenged an assessment against him on the ground that he should have been permitted to return security profits under the taxable gain provision. The matter was litigated in the Board of Tax Appeals, and it was there decided specifically that plaintiff was a trader, and that the assessment was proper. On appeal, Taylor v. Commissioner of Internal Revenue, 2 Cir., 1935,
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