to list all of these matters and that in some listed the amounts suggested were quite different from those given in testimony.
The defense called Ellison and from his testimony it was revealed that for 1965 his personal income tax was $88,916 on income of $213,000, of which $198,000 came from dividends. He also paid a substantial tax in 1964.
Defense also called Joseph Eberle and it was disclosed that his taxable income for 1964 was $47,000 on which he paid a tax of $16,869, and for 1965 the taxable income was $50,000 on which he paid an income tax of $17,000.
Fred Klarman, another director of plaintiff company who had been employed by plaintiff since 1931, testified that at the end of fiscal 1964 the company had $916,000 with Proctor-Ellison and $693,722 in treasury bills, and at the end of 1965 $753,748 with Proctor-Ellison and $1,346,511 in treasury bills. Klarman testified, too, that the inventory at the beginning of fiscal 1964 and before any strike was anticipated was only $2,500,000. He further testified that nothing was "set up" on the books for planned expenditures for improvements.
The defense called Robert J. Marenick, a "Financial Analyst" who had a college degree having majored in accounting, and who had done some graduate work before going with the United States Government in January of 1970 in the Treasury Department. Shortly after starting with the government he began work on the Eberle case. After examining the books of the company Marenick concluded that at the end of 1964 the company had available to operate the business $4,309,000 and needed only $4,028,000, or that the company had $282,000 that was not being used in the day-to-day business, and in 1965 it had available to operate the business $4,847,000 and needed only $4,130,000, or an excess of $718,000 not being used in the business. He further testified that from his examination of the books, he concluded that $3,600,000 was the sum needed for working capital. He concluded also that the treasury bills while normally classed as current assets or cash equivalent, should not be so considered here because he thought they were not being used in the business and should be considered investments.
Taking all of the evidence in the light most favorable to the plaintiff company as we must, Warner v. Billups Eastern Petroleum Co., 406 F.2d 1058 (4th Cir. 1969); Mroz v. Dravo Corp., 293 F. Supp. 499 (W.D.Pa.1968), aff'd, 3 Cir., 429 F.2d 1156; Adzigian v. Harron, 297 F. Supp. 1317 (E.D.Pa.1969); Andrews v. Dravo Corp., 288 F. Supp. 142 (W.D.Pa.1968), aff'd, 3 Cir., 406 F.2d 785; Cage v. New York Cent. R. R. Co., 276 F. Supp. 778 (W.D.Pa.1967), aff'd, 3 Cir., 386 F.2d 998, we conclude that the jury verdict cannot be disturbed.
It is true that had a dividend been paid in 1964 or a larger one paid in 1965, the shareholders would have paid a larger income tax, but neither this nor the fact that the company might have acquired working capital by financing are sufficient grounds to show that plaintiff unlawfully accumulated earnings. See R. Gsell & Co. v. C.I.R., 294 F.2d 321 (2d Cir. 1961); Elec. Regulator Corp. v. C.I.R., 336 F.2d 339 (2d Cir. 1964).
The defendant's "Motion for Judgment Notwithstanding the Verdict and a New Trial, or in the Alternative for a New Trial on all the Issues" will be denied.