BUTTOLPH v. COMMISSIONER OF Circuit Court of Appeals, Seventh Circuit. 29 F.(2d) 695 put upon the defendant because of his more convenient access to the facts. Goodfriend v. U. S., 294 F. 148 (C. C. A. 9); McCurry v. U. S., 281 F. 532 (C. C. A. 9). The three first counts should have been dismissed. [3, 4] The appeal from the suspension of sentence was premature. The only judgment in 1. Internal revenue 25-Refusal to permit No. 4028. petitioner to file separate amended income tax returns, after filing joint return and payment of tax, held not error (Revenue Acts 1918, 1921, § 223). Where petitioner filed joint federal income tax return for himself and his wife for year 1922, and paid tax as returned, refusal of Commissioner to permit substitution of amended returns, made out separately for petitioner and his wife, with a view of recovering excess tax, held not error, under Revenue Act 1918, § 223, 40 Stat. 1074, and Revenue Act 1921, § 223, 42 Stat. 250; taxpayer having option to make joint or separate return. 2. Internal revenue 36-Taxpayer's Ignorance of right to elect between Joint and separate returns does not bring him within act permitting Commissioner to refund taxes illegally assessed (Revenue Acts 1918 and 1921, § 223; Revenue Act 1918, § 1316, re-enacted as Revenue Act 1921, § 1315; 26 USCA § 149). a criminal prosecution is the sentence, and when sentence is suspended there is no judgment from which to appeal. This has been substantially the uniform ruling whenever the question has arisen, in the absence of some statute allowing an appeal. Hill v. People, 10 N. Y. 463; People v. Bork, 78 N. Y. 346; People v. Markham, 114 App. Div. 387, 99 N. Y. S. 1092; People v. Flaherty, 126 App. Div. 65, 110 N. Y. S. 699; State v. Vaughan, 71 Conn. 457, 42 A. 640; Fleet v. State (Md.) 21 A. 367; Symington v. State, 133 Md. 452, 105 A. 541; Com. v. Carver, 224 Mass. 42, 112 N. E. 481; State v. Brewer (N. J. Sup.) 59 A. 31; State v. Bongiorno, 96 N. J. Law, 318, 115 A. 665; State v. McKettrick, 13 S. C. 439; Gibson v. State, 96 Tex. Cr. R. 428, 257 S. W. 1101; People v. Hartman, 23 Cal. App. 72, 137 P. 611. The only cases which we have found to the contrary are State v. Griffis, 117 N. C. 709, 23 S. E. 164, and our own decision in Cooper v. U. S. (C. C. A.) 232 F. 81. In North Carolina the rule appears to be that the defendant must consent to a suspended sentence, State v. Tripp, 168 N. C. 150, 83 S. E. 630; and it is not enough that he does not protest. Defendants usually do in fact consent, and the distinction would in most cases be unreal, but on this record an appeal Board of Tax Appeals and specific operation would apparently lie in that state. Taxpayer's ignorance of his right to elect between filing joint and separate returns for himself and wife, under Revenue Act 1918, § 223, 40 Stat. 1074, and Revenue Act 1921, § 223, 42 Stat. 250, did not bring him within Revenue Act 1918, § 1316, re-enacted as Revenue Act 1921, § 1315 (26 USCA § 149), authorizing Commissioner to refund taxes illegally assessed. 3. Statutes 2253/4-Re-enactment of tax statute may be construed as embodying practical construction by Commissioner and Board of Tax Appeals. Re-enactment of tax statute, after practical construction thereof by Commissioner and under it, may be construed to embody such construction as a satisfactory interpretation of the legislative intent. Petition for Review of Order of United States Board of Tax Appeals. Proceeding by William A. Buttolph against the Commissioner of Internal Revenue, taken to the Board of Tax Appeals. The order of the Board of Tax Appeals was adverse to the taxpayer, and he petitions for review. Affirmed. Our own decision was made without citation or discussion, and apparently without acquaintance with the body of authority to the contrary; it seems to us that it can no longer stand in its face. When Congress passed the Probation Law (18 USCA §§ 724-727) it must be understood to have intended the system so established to be construed in the same sense as it had been in the states from which it was borrowed, Metropolitan R. Co. v. Moore, 121 U. S. 558, 572, 573, 7 S. Ct. 1334, 30 L. Ed. 1022. Nor is there any serious injustice involved; a defendant may at any time insist upon the imposition of sentence, if so minded, and if he prefers to remain under probation rather than to take his chances, no grave evil results. At any rate, if it be thought desirable that he should have an appeal, the law is too well ALSCHULER, Circuit Judge. In March, settled for us to change it. 1923, petitioner filed a joint federal income Judgment reversed on counts 1, 2, and 3; tax return for himself and his wife for the appeal dismissed on count 6. taxable year 1922, and paid the tax as re Frank H. T. Potter, of Chicago, Ill., for petitioner. Morton P. Fisher, of Baltimore, Md., for respondent. EVAN A. Before ALSCHULER, turned. About a year thereafter he filed purported amended tax returns for same year, separately for himself and wife, with a view of recovering the excess of the tax as computed on the joint return over the tax payable on the basis of the separate returns. The Commissioner declined to permit the substitution of the amended returns, and on appeal to the Board of Tax Appeals the Commissioner's action was sustained. This proceeding challenges the ruling of the Board of Tax Appeals. Under section 223 of the Revenue Act of 1918 (40 Stat. 1074), the Commissioner had been accepting such joint returns and computing the tax on the basis thereof, although it appears that doubt was entertained as to the right, under the statute, to predicate the tax upon such joint returns. It was the practice, also, to permit the filing of amended returns, changing joint to separate and separate to joint returns. Indeed, at the same time that the separate returns here in question were tendered, there were also tendered by the same taxpayer similar amended returns for the years he had made joint returns under the 1918 act, and these substitutions were allowed. The assigned reason in each case for failure to file the separate returns was that the taxpayer did not know the law permitted the filing of separate returns for husband and wife. The language of the Revenue Act of 1918 is: "If a husband and wife living together have an aggregate net income of $2,000 or over, each shall make such a return unless the income of each is included in a single joint return." The Revenue Act of 1921 is, in this respect, somewhat different, at least in form, the applicable language being: "If a husband and wife living together have an aggregate net income for the taxable year of $2,000 or over, or an aggregate gross income for such year of $5,000 or over "(1) Each shall make such a return, or "(2) The income of each shall be included in a single joint return, in which case the tax shall be computed on the aggregate income." 42 Stat. 250. After the passage of the 1921 act, there was published by the Commissioner, June 26, 1922, income tax ruling No. 1372, which is: "Where husband and wife for 1921, or a subsequent year, have elected to file a joint return or separate returns, they may not, after the filing of such return, file amended returns on the other basis." This ruling was subsequently modified somewhat, but in no way affecting returns filed for the taxable year 1922 and subsequently. [1] No reason appears to us why the making of such a ruling was not fairly within the powers of the Commissioner. It deprives no taxpayer of the right to file an amended return to correct errors properly subject to correction. It is in complete harmony with the statute to which it applied. (2) Ignorance of the taxpayer of his right to elect between filing joint and separate returns does not, in our judgment, bring him, as a matter of right, within the scope of section 1316 of the Revenue Act of 1918, reenacted as section 1315 of the 1921 act, which is: "The Commissioner of Internal Revenue, subject to regulations prescribed by the Secretary of the Treasury, is authorized to remit, refund, and pay back all taxes erroneously or illegally assessed or collected, all penalties collected without authority, and all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected," etc. 26 USCA § 149. A controversy similar to this was adjudicated in Grant v. Rose, 24 F. (2d) 115, and the District Court held that the statutory right of choice (between joint and separate returns) is exhausted on the expiration of the time for filing returns. See, also, Alameda Investment Co. v. McLaughlin (D. C.) 28 F. (2d) 81. [3] Such, also, has been the repeated holding by the Commissioner and the Board of Tax Appeals, and yet, with these rulings of the Commissioner and of the Board of Tax Appeals applicable to the right to thus amend under section 223, the section was re-enacted in the acts of 1924 and 1928. 26 USCA §§ 964, 205.1. Such re-enactment of a statute, after practical construction-not plainly erroneous and specific operation under it, may presumably be construed to embody such construction as a satisfactory interpretation of the legislative intent. New York, New Haven & Hartford R. Co. v. Interstate Commerce Commission, 200 U. S. 361, 401, 26 S. Ct. 272, 50 L. Ed. 515; Copper Queen Mining Co. v. Territorial Board of Arizona, 206 U. S. 474, 479, 27 S. Ct. 695, 51 L. Ed. 1143. The order of the Board of Tax Appeals is affirmed. 29 F.(2d) 697 JAS. H. FORBES TEA & COFFEE CO. v. The mark is thus described in the declaraRANNEY-DAVIS MERCANTILE CO. Circuit Court of Appeals, Eighth Circuit. November 26, 1928. No. 8018. 1. Trade-marks and trade-names and unfair competition68(2)-One is not guilty of unfair competition where so dressing his product that purchaser exercising ordinary care can ascertain sources of its manufacture. One who so names and dresses his product that a purchaser, who exercises ordinary care to ascertain the sources of its manufacture, can readily learn that fact by reasonable examination of the boxes or wrappers that cover it, has fairly discharged his duty to the public and to his rivals, and is guiltless of that deceit which is an indispensable element of unfair competition. 2. Trade-marks and trade-names and unfair competition70(4)-Defendant, whose coffee packages were so marked as to be distinguished from those of complainant, held not liable in suit for unfair trade. In suit to recover for unfair trade because of similarity of trade-marks "Sante Fe" used on packages of coffee, evidence that defendant's coffee packages were marked in such manner as plainly to distinguish them from those of complainant, and also to advise the public of the source of manufacture and the business firm by which those products were put out and offered for sale, held to require decree for defendant. Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Suit by the Jas. H. Forbes Tea & Coffee Company against the Ranney-Davis Mercantile Company. Decree for defendant, and complainant appeals. Affirmed. VAN VALKENBURGH, Circuit Judge. This is a suit for infringement of what is termed a common-law trade-mark, amounting substantially to a trade-name, which, it is claimed, has been used so long, and in such manner, as to stamp and identify the goods of complainant in the eyes of the purchasing public. Appellant has a registered trademark under the name "Forbes Santa Fe Trail," registered November 16, 1915, used for coffee, foods, and ingredients of foods. tion: In the statement filed in the patent office it is said: "No claim is made to the use of the words 'Santa Fe Brand' apart from the mark shown on the drawing." Reference to these registered marks is in a way superfluous, for the reason that neither party counts upon registry. However, the fact that such marks have been registered becomes interesting in view of the character of the litigation. It is perhaps significant that complainant does not rely upon registry; presumably, because it has little confidence that the words employed are susceptible of appropriation as a true trade-mark. The case, therefore, resolves itself into an action to recover for unfair trade. The difficulty of defining the precise gravamen of the suit, because of the terms employed in the complaint, is thus voiced by the trial judge: "It has been somewhat difficult in this suit to ascertain the true nature of the case from the pleadings of the complainant. While it appears from the proofs both parties have registered trade-marks or trade-names, a reading of the complaint discloses this suit is not brought for the purpose of enjoining defendant from the use of a trade-mark or tradename by it exclusively adopted by registration under the statutes. In fact, the name which forms the entire gravamen of the contention between the parties, 'Santa Fe,' has occupied such a place in the history of our western country there can be no doubt but that the same on account of its historical use could not be properly registered or claimed for exclusive use by any one. It then being clear from the pleadings and proofs the suit of the plaintiff cannot be regarded as one for infringement of complainant's tradeaffirmed 240 U. S. 251, 36 S. Ct. 269, 60 L. Ed. 629. mark or trade-name, it must be held the suit is one to restrain unfair competition in business and for an ascertainment of damages sustained by complainant by reason of such unfair and unlawful competition in business." [1] The word "Santa Fe" is insisted upon by appellant as the dominant feature of its al The decree of the trial court dismissing the bill was right and is affirmed. leged trade-name, and it is contended that CONKLIN-ZONNE-LOOMIS CO. v. COMMIS SIONER OF INTERNAL REVENUE.* Circuit Court of Appeals, Eighth Circuit. November 24, 1928, appellee infringes by using that word upon its packages containing coffee. It is, of course, true that where words, not subject to appropriation as a true trade-mark, have come, through long use, to denote the particular manufacturer or vendor of a specific 1. Internal revenue 25-Findings of Board commodity, relief against unfair competition may be awarded. Where it is charged that they are used to deceive the purchasing public on the question of origin, the applicable rule is thus stated: "One who so names and dresses his product that a purchaser who exercises ordinary care to ascertain the sources of its manufacture can readily learn that fact by a reasonable examination of the boxes or wrappers that cover it has fairly discharged his duty to the public and to his rivals, and is guiltless of that deceit which is an indispensable element of unfair competition." Wrisley Co. v. Iowa Soap Co. (C. C. A. 8) 122 F. 798, and cases cited. [2] Unless, therefore, the word "Santa Fe," a purely geographical term, has been so appropriated as to have acquired a secondary meaning to the use of which complainant has become exclusively entitled, no invasion of its rights appears. The case as pleaded and presented turns largely upon two considerations: First, priority of use; and, second, whether the goods of appellee, as marked, are likely to deceive. The record contains substantial evidence to the effect that appellee used the name "Santa Fe" in connection with its coffee and other products in a wide territory as early as 1908. Appellant does not pretend to have used its name earlier than in the spring of 1915. The District Court so found the facts, and there is, in our judgment, substantial evidence to support its conclusion. Upon the second point the exhibits, too extended for incorporation in this opinion, discloses that the coffee packages of appellee are marked in such manner as plainly to distinguish them from those of appellant, and also to advise the public of the source of manufacture and the business firm by which those products are put out and offered for sale. Wrisley Co. v. Iowa Soap Co., supra; Wolf Bros. & Co. v. HamiltonBrown Shoe Co. (C. C. A. 8) 206 F. 611, No. 339, Original. of Tax Appeals, supported by evidence, are conclusive (Revenue Act 1926, §§ 1001 (a), 1003(a) (b); 26 USCA §§ 1224(a), 1226(a) (b). Under Revenue Act 1926, §§ 1001(a), 1003 (a) (b), 26 USCA §§ 1224(a), 1226(a) (b), relative to review of decisions of the Board of Tax Appeals, the findings of the board are conclusive, if there is any evidence to support them. 2. Internal revenue 7 (28) -Corporation held to derive "substantial and material Income from capital invested," as respected personal service classification (Revenue Acts 1918 and 1921, §§ 200, 231). Corporation, which in tax years had gross income of $74,913, $59,548, and $60,864, and which in such years received as income from investment in stocks and bonds $8,649.96, $6,203.76, and $4,127.46, received "substantial and material income from capital invested," within Revenue Acts 1918 and 1921, § 200 (40 Stat. 1059; 42 Stat. 228), defining personal service corporations, and section 231 (40 Stat. 1077; 42 Stat. 254), exempting them from taxation. 3. Internal revenue 7 (28) -Corporation receiving Income from capital is not "personal service corporation," though capital not used In business (Revenue Acts 1918 and 1921, §§ 200, 231). Corporation receiving material income from capital invested in stocks and bonds is not a "personal service corporation," within Revenue Acts 1918, and 1921, §§ 200, 231 (40 Stat. 1059, 1077; 42 Stat. 228, 254), though capital producing the income was not used in the corporation's business. On Petition to Review Decision of United States Board of Tax Appeals. Proceeding by the Conklin-Zonne-Loomis Company against the Commissioner of Internal Revenue. The Board of Tax Appeals rendered a decision adverse to petitioner, and it brings a petition to review the decision. Affirmed. J. B. Faegre, of Minneapolis, Minn. (Cobb, Hoke, Benson, Krause & Faegre, of *Rehearing denied February 4, 1929. 29 F.(2d) 698 Minneapolis, Minn., on the brief), for peti- purchases. The petitioner also had some intioner. L. W. Scott, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (Mabel Walker Willebrandt, Asst. Atty. Gen., and C. М. Charest, Gen. Counsel, Bureau of Internal Revenue, and J. Arthur Adams, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent. Before BOOTH, Circuit Judge, and POLLOCK and DEWEY, District Judges. DEWEY, District Judge. This is an appeal from the actions of the Board of Tax Appeals in determining an income tax liability of petitioner for the fiscal years ending April 30, 1920, April 30, 1921, and from May 1 to December 31, 1921. The question for decision is whether the petitioner was entitled to classification as a personal service corporation within the term defined by section 200 of the Revenue Acts of 1918 and 1921 (40 Stat. 1059; 42 Stat. 228), and as such entitled to exemption. That part of said section material to this case is as follows: title Section 200: "That when used in this the term 'personal service corporation' means a corporation whose income is to be ascribed primarily to the activities of the principal owners or stockholders who are themselves regularly engaged in the active conduct of the affairs of the corporation and in which capital (whether invested or borrowed) is not a material incomeproducing factor." And section 231 of said Revenue Acts (40 Stat. 1077; 42 Stat. 254) provides that personal service corporations shall be exempt from taxation. The facts, as found by the Board of Tax Appeals, are substantially as follows: "The petitioner is a Minnesota corporation, with its principal office at Minneapolis. During the time involved in this proceeding its principal business was the management as agents, for owners of certain office and retail store buildings located in Minneapolis. Its operations consisted in the renting of such buildings, collection of rents, payments of taxes, arranging and paying for insurance, and all other operating expenses, and in the employment of the personnel required for the operating of buildings under its management. For these services it received a commission of approximately 5 per cent. on the gross rentals collected. During the fiscal year ended April 30, 1921, it purchased coal for the owners of the buildings and received a commission of five cents per ton on such come from dividends, commissions on loans, and for rental of space in its offices, and from making appraisals of real estate. "During the taxable years, the officers of the petitioner and their stock holdings were J. F. Conklin, president, 1 share; A. Ε. Zonne, vice president, 124 shares; and G. B. Loomis, secretary, 41 shares. No other stock was outstanding. Zonne and Loomis devoted practically all their time to the business. Conklin's activities were nominal. "The business of the petitioner was secured by advertising in newspapers, by the circulation of printed matters among prospective clients, and by personal solicitation by the officers. None of the employees took any part in acquiring new business. The only equipment used consisted of office furniture, fixtures, and supplies. "Rents of buildings managed by the petitioner were payable monthly in advance. Collections were always made before the end of the month, and settlements were made with clients between the 10th and 15th of the succeeding month. There was always sufficient money to pay all operating expenses, and to settle with clients without the use of either invested or borrowed capital. "The petitioner owned substantial amounts of the stocks of various other Minnesota corporations, and received dividends therefrom, in the several taxable years, in the respective amounts of $8,649.96, $6,203.76, and $4,127.46. Such investments totaled $39,760, $41,495, and $39,110, for the respective taxable years. It also owned and received income from a relatively small investment in Liberty bonds"; that the gross income for the years in question was: 1920, $74,913; 1921, $59,548; 1922, $60,864. Upon the foregoing findings of fact the Board of Tax Appeals determined the question as follows: "The record of this proceeding discloses that a material part of the petitioner's income for each of the taxable years, and the taxable period in question resulted from dividends received from investment of capital in stocks and bonds. We are of the opinion, therefore, that the petitioner is not entitled to personal service classification in any of the years as to which deficiencies are asserted by the respondent." In other words, the Board of Tax Appeals found as a matter of law that under the facts determined by it the petitioner was not entitled to the classification of a personal. service corporation, because, during the yeary in question, it had capital invested which pro |