dissenting: On the res judicata question reflected in the first headnote I think we have erred. The state judgment decision relied upon to prevent the application of res judicata was, as the majority opinion and findings of fact show, not an adversary proceeding, but one based upon agreement. The pertinent allegations of the petition there were admitted by the answer, that is, the petition alleged and the defendant’s answer admitted the oral agreement to cancel exising contracts. There was no actual controversy between the parties. Freuler v. Helvering, 291 U. S. 35, indicates that a decree of a state court to be relied upon as conclusive here can not be one “in any sense a consent decree” and can not be “collusive in the sense that all the parties joined in a submission of the issues and sought a decision which would adversely affect the Government’s right to additional income tax.” We have followed and applied this principle so many times that I do not see how we can fail to do so here. In First-Mechanics National Bank of Trenton, Executor, 40 B. T. A. 876, we declined to recognize a decree where there was no contest, but consent. We relied on the First-Mechanics National Bank case in Charles S. McVeigh, 3 T. C. 1246, cited the Freuler case, and declined to be bound by a judgment which we considered collusive in the sense used in the Freuler case. We there cited a number of cases, including Otto C. Bote, 45 B. T. A. 970. In Tatem, Wofford, 5 T. C. 1152, we held that a state court’s adjudication of ownership of property on the basis of an admission thereof was not binding upon the Tax Court and that there must be a-real controversy and in no sense a consent decree. The suit was in a circuit court, but was affirmed by the Supreme Court of Florida. In Francis Doll, 2 T. C. 726; affd., 149 Fed. (2d) 239, we followed the Freuler case in that matter. After respondent’s determination and the filing of the petition and answer in this Court, a decree was entered by a Missouri court as to partnership. The petition in that court asked for a construction of a writing as to partnership and the answer admitted the material allegations. We held that such judgment was not controlling, saying that the answer had admitted the material allegations. It is to be noted that the judgment in the state court in the Doll case was a declaratory judgment. In Leslie H. Green, 7 T. C. 263, 274; affd., 168 Fed. (2d) 994, the situation was that after the filing of the petitions before this Court proceedings were instituted in a Michigan state court to obtain a decree construing the trust instruments in question. Notice was served upon the Commissioner of Internal Revenue. There was no controversy in issue and no object other than the purpose of obtaining the state court’s interpretation of the instruments. Relying upon the Freuler, Wofford, and Doll cases, and noting that the pleadings in the state court presented no real controversy, and that, although the answer purported to put plaintiff on proof of many allegations, there was no evidence of proof being introduced, we concluded that the proceeding was collusive and not binding. To the same effect see Ernie Krag, 8 T. C. 1091; Estate of Mary Clare Milner, 6 T. C. 874; and James 8. Reid Trust, 6 T. C. 438. In the last named case an Ohio court, after controversy had arisen between the parties and the Treasury Department of the United States as to taxation of income, was asked to construe a trust agreement. The General Counsel for the Commissioner of Internal Revenue was notified. It did not appear whether answers were filed, but it was stipulated that the matter was not briefed. We found it to be collusive under the Freuler case and that there was no “real trial.” I note also Loggie v. Thomas, 152 Fed. (2d) 636, wherein it was held that the fact that the state court had rendered a declaratory judgment with reference to the legal title to property as between trustee and cestuis gue trust “does not foreclose an inquiry as to the liability of the trustee for taxes on the income from the same property involved in the state court judgment”; also Sewell v. Commissioner, 151 Fed. (2d) 765, where, after decision here and appeal to the Circuit Court of Appeals, Fifth Circuit, petitioners in that court moved to remand the case to the Tax Court for consideration by the Tax Court of a declaratory decree of the state court of Georgia rendered since the decision of the Tax Court. The Circuit Court held that, though the decision of the state court was binding between the parties in the settlement of their legal rights inter sese, it was not so between the parties and the United States over income taxes.
I can find no reason for not adhering to these repeated decisions in this matter. Blair v. Commissioner, 300 U. S. 5; Commissioner v. Sunnen, 333 U. S. 591; and Masterson v. Commissioner, 141 Fed. (2d) 391, relied upon by the majority, do not touch this question of non-adversary or consent judgment. Gerrard E. Kelly Trust v. Commissioner, 168 Fed. (2d) 198, does not touch it, but is based upon the fact that there was appeal from the state court judgment and a dissent in the appellate court. With all respect, I can not conceive why an appeal from a consent or nonadversary matter renders it less so — for, of course, the appeal could be pro forma and without real contest, as much as the original judgment. I note that in the Tatem Wofford case, supra, the state court judgment was affirmed by the Supreme Court of Florida, yet, as above stated, we declined to give effect thereto because it was an adjudication on the basis of an admission. We have therefore, apparently passed upon this question. In any event, .1 would follow the numerous decisions above and decline to give effect to a state court decision, even though appealed, which was obviously nonadversary and equally obviously intended to be collusive in the sense of the language expressed in the Freuler case. I therefore dissent.
Kern, Harron, Opper, and LeMire, JJagree with this dissent.