Theodore Zachary v. United States

220 F.2d 749 Theodore ZACHARY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 221. Docket 23397. United States Court of Appeals, Second Circuit. Argued March 15, 1955. Decided March 30, 1955. Appeal from the United States District Court for the District of Connecticut; J. Joseph Smith, Judge. — 1 — Plaintiff, Theodore Zachary, appeals from dismissal of his action for tax refund because of the fatal variance between the claim for refund originally presented to the Commissioner of Internal Revenue, based on the ground that losses suffered in 1945 and 1946 might be carried back to 1943, the fiscal year in question, and the claim now sued on, predicated on overstatement of income because of erroneous inclusion of nontaxable sums received as damages for fraud, abuse, and oppression. — 2 — Theodore Zachary, Derby, Conn., plaintiff-appellant, pro se. — 3 — Ethan B. Stroud, Sp. Asst. to Atty. Gen., Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., and Ellis N. Slack, Sp. Asst. to Atty. Gen., and Simon S. Cohen, U. S. Atty. for Dist. of Conn., Hartford, Conn., on the brief), for defendant-appellee. — 4 — Before CLARK, Chief Judge, FRANK, Circuit Judge, and GALSTON, District Judge. — 5 — PER CURIAM. — 6 — Affirmed on the opinion of District Judge Smith, D.C.Conn., 126 F.Supp. 726.