Capital Contributions Did Not Constitute "Tax-Exempt Income" to S Corporations, Plus Civil Procedure Matters - U.S. Second Circuit
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Capital Contributions Did Not Constitute "Tax-Exempt Income" to S Corporations, Plus Civil Procedure Matters

Nathel v. Comm'r. of Int'l. Rev., No. 09-1955, involved an appeal from a decision by the tax court finding that capital contributions petitioners made to two S corporations could not be treated as "tax-exempt income" to the corporations for the purpose of increasing, pursuant to 26 U.S.C. section 1367(b)(2)(B), the petitioners' bases in loans they made to the corporations, and that petitioners could not deduct their capital contributions as ordinary losses incurred in a trade or business pursuant to 26 U.S.C. section 165(c)(1) or incurred in a transaction entered into for profit pursuant to section 165(c)(2). 

The court of appeals affirmed, holding that 1) petitioners' capital contributions did not constitute "tax-exempt income" to the S corporations and, therefore, petitioners were not entitled to increase their bases in their loans; and 2) because the petitioners did not meet their burden of showing that the primary purpose of their capital contributions was to obtain releases from their loan guarantees, the petitioners are not entitled to deductions from ordinary income pursuant to section 165(c)(2).

L-3 Comms. Corp. v. OSI Sys., Inc., No. 09-2292, concerned defendant's appeal from the district court's order taxing to defendant, under Fed. R. App. P. 39(e), plaintiff's costs of obtaining a letter of credit to secure the judgment on appeal.  The Ninth Circuit affirmed, on the ground that the court of appeals' order awarding costs to plaintiff without limitation pursuant to Rule 39(a)(4) entitled plaintiff to seek from the district court any and all permissible items of appellate costs properly taxed by that court pursuant to Rule 39(e).

Harris v. City of N.Y., No. 09-0081, involved plaintiff's appeal from the district court's order revoking his in forma pauperis status and dismissing his complaint.  The Ninth Circuit affirmed in part, holding that 1) 28 U.S.C. section 1915(g) applied to a plaintiff who had been released from prison subsequent to the filing of his complaint; 2) a court may dismiss a complaint pursuant to section 1915(g) even if the defendants did not raise that provision in the pleadings; 3) a court may rely on docket sheet entries of prior dismissals in order to determine whether section 1915(g) applies; and 4) plaintiff did not qualify for the imminent danger exception under section 1915(g).  However, the court vacated in part to permit the district court to issue a new order of dismissal permitting plaintiff to apply for in forma pauperis status as a non-incarcerated plaintiff if he chose to refile his complaint.

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