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Gibson Howell Co. v. Helvering

November 25, 1935

GIBSON HOWELL CO., INC.,
v.
HELVERING, COMMISSIONER OF INTERNAL REVENUE ET AL.



Appeal from the District Court of the United States for the District of New Jersey.

Author: Davis

Before DAVIS and THOMPSON, Circuit Judges, and KIRKPATRICK, District Judge.

DAVIS, Circuit Judge.

This is an appeal from an order refusing a temporary injunction to the appellant, the Gibson Howell Company, Inc., hereinafter called the Gibson Company.

For many years this company has been engaged in manufacturing and distributing pharmaceutical preparations, cosmetics, toilet supplies, etc., in Jersey City, for which it requires considerable specially denatured alcohol.In 1934, it filed a petition for reorganization and in due time Abraham Strauss and John G. Woltjen were appointed trustees of the company. On October 4, 1934, a plan of reorganization was filed, and Louis A. Greenberg advanced the money necessary to effect the reorganization. On November 13, 1934, the court approved the plan. New directors and officers were elected for the company, and new shares of stock were issued to its stockholders which it is alleged numbered more than 1,000.

After the petition for reorganization had been filed (but before the plan for reorganization was filed), application for a permit for 1935 was signed and filed by Woltjen, as trustee. It was stated in the application that the business of the company would be carried on under Woltjen and not as before. Woltjen, it is alleged, has not been discharged and is still trustee of the company.

On December 15, 1934, after the newly elected officers had been installed, the Supervisor of Permits issued to the company a permit, which, at the request of the Supervisor, was amended on June 24, 1935. Specially denatured alcohol was withdrawn by the company as allowed by the permit until August 15, 1935, when the Supervisor attempted to terminate the permit by a letter, as follows:

"August 15, 1935 "Gibson Howell Co., Inc., 140-142 Cator

Avenue, Jersey City, N.J.

"Gentlemen: Investigation by this office has disclosed that there has been a sale and transfer of the business in connection with which the permit activities are conducted, which has resulted in a transfer of your control and management.

"The provisions of your permit provide that such change and transfer shall terminate this permit. You are advised that your permit, SDA-NJ-591, is hereby terminated.

"You are requested to file a formal application setting out the details of the change in the management and control of your business, giving a complete list of officers and stockholders and persons having any interest whatsoever in your operations. You will be advised as to any action taken by this office on said application immediately upon completion of investigation on the same.

"Very truly ...


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