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OSTHEIMER v. UNITED STATES

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


March 4, 1958

A. J. OSTHEIMER, 3rd, and Ruth M. Ostheimer
v.
UNITED STATES of America

The opinion of the court was delivered by: KIRKPATRICK

The plaintiff, a life insurance agent authorized to act as special agent for the Northwestern Mutual Life Insurance Company and to solicit for the Aetna Life Insurance Company, procured policies with Northwestern on the lives of his former partner, three key employees and his children, as well as one with Aetna on the life of his former partner. He brings this suit to recover the additional tax paid because of the inclusion in his income, by the revenue officials, of the commissions he received from the insurance companies by reason of the issuance of these policies. He contends that these commissions were not income to him but were, in effect, a reduction of the price of the policies.

I cannot agree. The Internal Revenue Department ruled in 1915 ( T.D. 2137, 17 Treasury Decisions 48) that 'A commission retained by a life insurance agent on his own life insurance policy is held to be income accruing to the agent, and should be included in his return of income for the assessment of the income tax.' This ruling was reaffirmed in 1932 and again in 1955. Obviously, the ruling would be the same as to commissions on policies on the lives of an agent's children, his employees and his business partner.

 An administrative interpretation such as this, so consistently followed over such a long period of time, is entitled to great weight with the Court and there is a heavy burden upon the plaintiff to show that it is erroneous. The insurance company, in fact, pays its agent for procuring policies and the premiums thereon. This is what the plaintiff did. It is true that because the policies were upon the lives of his partner, his employees and members of his family, he did not have to perform some of the duties that he would have performed if they had been upon the lives of strangers, but this in no way affects the status of the money he received. In fact, it would be a violation of the law for an insurance company to have sold insurance to him at a lower rate than that charged other policyholders.

 Judgment may be entered for the defendant.

 The requests for findings of fact and conclusions of law submitted by the defendant are all affirmed.

19580304

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