January 21, 1936
KELLY-SPRINGFIELD TIRE CO.
DAVIS, Circuit Judge.
This case is here on motion of the Kelly-Springfield Tire Company to amend the opinion heretofore filed in this case reversing the judgment of the District Court and awarding a new trial. The appellant asks us now to amend the opinion by striking from the last paragraph the words, "It follows that the judgment must be reversed and a new trial awarded," and by substituting therefor these words: "It follows that the judgment must be reversed and the case remanded to the trial court with instructions to proceed further, on the record made in the trial court, in conformity with this opinion."
This suit was brought to secure a deduction for amortization of the cost of appellant's plant at Cumberland, Md., under section 234 (a) (8) of the Revenue Act of 1918 (40 Stat. 1078). There were really two questions involved in the case: (1) Whether or not the facilities in question were acquired after April 6, 1917; and (2) whether they were acquired for the production of articles contributing to the prosecution of the war.
We held that the facilities for the cost of which the plaintiff is seeking a deduction for amortization were acquired after April 6, 1917, but that the learned District Judge failed to apply a liberal construction of the statute, to which the taxpayer was entitled, to the second question. The findings are perfectly clear. The government says that, "It is apparent that the trial court took great pains to find the evidentiary facts in detail." The error of the court was in construing the statute in its application to these facts. What it should now do is to apply the statute as we construed it to these "evidentiary facts" in finding the deduction for amortization of the cost of the facilities to which the appellant is entitled, and in doing this a new trial is not necessary. All it need do is to proceed on the record as already made in the District Court in conformity with the opinion of this court heretofore filed in this case.
The motion of the appellant is granted.
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