SILBERBERG v. FRANCHISE TAX BOARD (1951)

District Court of Appeal, Second District, Division 1, California.

SILBERBERG v. FRANCHISE TAX BOARD.

Civ. 18505.

Decided: December 04, 1951

Edmund C. Brown, Atty. Gen., James E. Sabine and Edward Sumner, Deputy Attys. Gen., for appellant. Mitchell, Silberberg & Knupp, and John L. Nourse, all of Los Angeles, for respondent.

The legal question presented for decision in this case is the same as stated in Francis v. McColgan, Cal.App., 238 P.2d 70.

The facts in this case are not quite the same. The divorce was granted, and the property agreement was made in California. The wife thereafter left California and lived in another state until after the death of her former husband. He remained at all times a resident of this state. The Franchise Tax Commissioner assessed to him additional taxes for the years 1944 to 1947, inclusive, refusing to allow him to deduct alimony payments in computing net income for his income tax. The additional taxes were paid, claim for refund was made and not allowed, and this action was brought.

Such differences in facts as may here appear do not change the conclusions reached in the Francis case.

For the reasons therein stated, the judgment in this case is affirmed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur. Hearing denied; TRAYNOR, J., dissenting.

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