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F. & M. SCHAEFER BREWING CO. v. UNITED STATES

No. 152, Docket 23775.

236 F.2d 889 (1956)

The F. & M. SCHAEFER BREWING CO., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

United States Court of Appeals Second Circuit.

Decided September 12, 1956.

Attorney(s) appearing for the Case

Karl Schmeidler, Atty., Dept. of Justice, Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Atty., Dept. of Justice, Washington, D. C., Leonard P. Moore, U. S. Atty., Elliott Kahaner, Asst. U. S. Atty., E.D.N.Y., Brooklyn, N. Y., on the brief), for defendant-appellant.

Thomas C. Burke, New York City (White & Case, Walter S. Orr and Edmund W. Pavenstedt, New York City, on the brief), for plaintiff-appellee.

Before CLARK, Chief Judge, and FRANK, MEDINA, HINCKS, LUMBARD, and WATERMAN, Circuit Judges.

CLARK, Chief Judge.

The plaintiff sued to recover the amount of stamp taxes which it alleged the government had illegally assessed and collected from it. The transaction which the government claimed to be thus subject to the tax in question did not involve the issue of any new stock certificates, but was actually an increase in the corporation's capital account by the transfer of $6,375,000 from its earned surplus account to its capital account, thus increasing the...

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