author: STEPHENSON, Circuit Judge.

text:
    AIR TERMINAL CAB, INC., Appellee, v. UNITED STATES of America, Appellant. AIRWAY TAXI COMPANY, INC., Appellee, v. UNITED STATES of America, Appellant.
    No. 72-1348.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1973.
    Decided April 30, 1973.
    Rehearing and Rehearing En Banc Denied May 22, 1973.

      Wesley Filer, Atty., Dept, of Justice, Washington, D. C., for appellant.
    William I. Rutherford, St. Louis, Mo., for appellees.
    Before LAY, HEANEY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

The question before the Court is whether drivers of respondent’s taxicabs are employees within the provisions of the Federal Insurance Contributions Act (FICA) (26 U.S.C. § 3101 et seq.) and the Federal Unemployment Tax Act (FUTA) (26 U.S.C. § 3301 et seq.), which impose taxes on employers to finance government benefits for employees.

These consolidated cases are suits for refund by two taxicab companies of partial payment of an assessment of withholding, FICA and FUTA taxes, penalties and interest allegedly owed by the plaintiffs. The plaintiff taxpayers have each paid one quarter of the alleged liabilities under protest. The Government counterclaimed below for alleged liabilities for other quarters. The years in question are 1965 through 1968. The District Court for the Eastern District of Missouri, Judge Wangelin presiding, found that the taxicab drivers were not employees for purpose of federal income tax withholding, FICA and FUTA taxes. Air Terminal Cab, Inc. v. United States, 341 F.Supp. 1257 (E.D.Mo.1972).

The resolution of the question whether the taxicab drivers are employees must be made by applying common law definitions of “employee” and “independent” contractor. It was thought by some that the decisions in United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757 (1947) and Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947) resulted in a more relaxed meaning of the term “employee” as used in the tax statutes. Shortly after those decisions, however, Congress amended the definition sections of the pertinent acts to make it clear that the term “employee” should be read “under the usual common law rules.” 26 U.S.C. § 3121(d)(2) and § 3306(i). See H.Conf.Rep.No. 2771, 81st Cong. 2d Sess. p. 104. See also, Hoosier Home Improvement Company v. United States, 350 F.2d 640, 642 (CA 7 1965).

The working relationship between the taxicab drivers and the appellees is undisputed and the facts are fully stipulated. The pertinent facts necessary for determination of the issue are as follows: Appellees, Air Terminal Cab, Inc. (Air Terminal) and Airway Taxi Company (Airway) are corporations organized and existing under and by virtue of the laws of Missouri. The method of operation of the two companies is substantially similar, but each is separately owned and operated. The two companies obtained franchises from St. Louis County to operate a specified number (12 each) of taxicabs within that county. Their cabs can only pick up passengers within the unincorporated areas of St. Louis County. The primary source of passengers in this restricted area is Lambert Airfield where passengers are picked up by the taxicabs waiting in line. The County granted franchises to appellees whose businesses involve company owned cabs operated by drivers who receive their compensation by retaining a percentage of the fares collected.

The companies do not have formal business offices but are operated from the homes of their respective presidents. They do not advertise nor do they have listed telephone numbers in the telephone directory. The taxicabs owned by the companies are not radio equipped, nor is there any kind of an operational dispatcher system. The drivers do not regularly report their whereabouts, nor do they receive instructions from the company presidents. The presidents may, if it becomes necessary to contact a driver, leave messages at the service stations where the taxicabs are left overnight, or they may call the drivers at their homes after working hours.

The taxicabs used in the businesses were owned and insured for liability by appellees. The drivers do not carry any insurance on their operation of the taxicabs. They are equipped with fare meters and have the company name, either “Lambert Airfield Cab, Co.” or “Lambert Airport Cab, Co.” painted in black letters on the door. When not in use, the taxicabs owned by each company are parked at separately owned service stations, in return for which each company contracts out to the particular service station the minor maintenance work needed on the taxicabs.

During the years in suit — 1965 through 1968 — the drivers of the companies’ taxicabs operated in the following way:

(a) At the beginning of their shifts, each of the drivers pick up the taxicab he is to drive at the service station where the particular driver’s company keeps the taxicabs pursuant to the maintenance-parking arrangement described above.
(b) From the service station, the drivers usually proceed directly to Lambert Airfield to pick up fare-paying passengers.
(c) After a passenger has been left at his destination, the drivers usually return directly to Lambert Airfield to pick up another fare-paying passenger. A driver makes an average of six (6) trips a day, consisting of transportation of a passenger from Lambert Airfield to the passenger’s destination and return to the Airfield.
(d) The drivers maintain a trip sheet on which is to be noted the pick up point and destination of each fare-paying passenger and the amount of the fare paid by each passenger.
(e) At the end of the shift, each driver deducts from the total amount of fares collected, the amount expended for gasoline and oil. The amount remaining is then divided equally between the company and the driver. The driver takes the company’s share and puts it in an envelope then along with the trip sheet drops the envelope through a slot in a metal strong box at the service station where the taxicabs are parked when not in use. The driver retains his own share of the fares collected and receives no other remuneration. These envelopes are picked up regularly by the president of the company. The trip sheets and envelopes are furnished to the drivers by the companies.
(f) The drivers do not use the taxicabs for their personal use. At the end of their shift, the drivers return the taxicabs to the service station to be parked and left until the next shift.

The drivers who drive the taxicabs owned by the plaintiff companies, as well as drivers for other taxicab companies in the St. Louis and St. Louis County areas, are organized into and are members of Local 688 Warehouse und Distribution Workers Union, affiliated with the International Brotherhood of Teamsters, Chauffeurs and Warehouse-men of America. Pursuant to contracts entered into with Local 688, effective September 1, 1965 and extending through 1968, “owner-drivers” 3 are regarded as employees of taxpayers and taxpayers reserve “the right to control the manner, means and details of, and by which the owner-operator performs his services, as well as the ends to be accomplished.”

The drivers are required to work a minimum of nine hours per day, five days per week pursuant to the union contract. They may work a maximum of 14 hours per day and six days per week. In addition, starting times and days to be worked are set by taxpayers. After drivers have completed one year of work they are entitled to a one-week paid vacation, sick leave benefits, and specified paid holidays. Article XII of the union contract gives the companies the right to discharge drivers pursuant to the union grievance procedure.

The issue of whether an employer-employee relationship exist for purposes of employment taxes has generally been held to be one of fact. Saiki v. United States, 306 F.2d 642, 648 (CA8 1962); American Consulting Corp. v. United States, 454 F.2d 473, 477 (CA3 1971); Lanigan Storage & Van Co. v. United States, 389 F.2d 337, 340-341 (CA6 1968); Lifetime Siding, Inc. v. United States, 359 F.2d 657, 662 (CA2 1966); Hoosier Home Improvement Co., Inc. v. United States, 350 F.2d 640, 643 (CA7 1965); McGuire v. United States, 349 F.2d 644, 646 (CA9 1965); Service Trucking v. United States, 347 F.2d 671, 672 (CA4 1965).

In the instant case the trial court likewise held it was a question of fact, stating at page 1263 of 341 F.Supp.:

“The question of plaintiffs’ control over the manner and means of the operation of the taxicab is a factual question. Considering all factors, the Court concludes that the plaintiff had little, if any, control over the means and method by which the drivers performed their services.” (emphasis added)

However, this Court has not hesitated to reverse where the evidence did not support the conclusion reached by the trier of fact. Saiki v. United States, supra, 306 F.2d 642, 652 (CA8 1962); United States v. Kane, 171 F.2d 54 (CA8 1948).

Where the facts are stipulated “and there is no conflict in the evidence, or in the inferences which reasonably can be drawn therefrom, this Court may rule upon the question of law presented and is not restricted by the limitation of Rule 52(a) F.R.Civ.Proc.” United States v. Kavanaugh, 308 F.2d 824, 828 (CA8 1962); United States v. Mississippi Valley Barge Line Co., 285 F.2d 381, 388 (CA8 1960); Compare, Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Azad v. United States, 388 F.2d 74, 78 (CA8 1968).

Moreover, even if we would apply the “clearly erroneous” rule, the Supreme Court has pointed out that “a finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” United States v. U. S. Gypsum Company, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). In the case at bar the facts are largely stipulated and there is no dispute as to them. Whether the question for determination is viewed as one of fact or law, we are convinced that under applicable standards a mistake has been committed in the result arrived at by the trial court.

This Circuit has not directly passed on the question of whether a taxicab driver is an employee for federal employment tax purposes. The two leading cases in this area appear to be Party Cab Company v. United States, 172 F.2d 87 (CA7 1949), cert. denied, 338 U.S. 818, 70 S.Ct. 62, 94 L.Ed. 496 (1949) and United States v. Fleming, 293 F.2d 953 (CA5 1961). In Party Cab the taxicab drivers worked essentially on a rental basis whereby they paid a fixed fee for the use of a cab and were subject to little control over their daily routine other than fixed working hours. The court held that the drivers were not employees for employment tax purposes. In Fleming, the drivers were directed to pickups by radio dispatcher calls, were required to account for their trips by use of trip reports, were subject to discharge, did not pay for their own gas and oil, and were required to split their fares with the company (65% to the company). In finding that the taxicab drivers were employees, the court in Fleming relied heavily on the fare-splitting arrangement between the drivers and the company. 293 F.2d at 957. The court there stated:

“The large measure of control here present, the operation by the Company of a taxi business rather than merely a renter of cabs, and other factors require a determination that the employer-employee relationship existed.” (emphasis added)

We stated, supra, that common-law tests are to be used to determine the status of the taxicab drivers. These common law tests mentioned in the Internal Revenue Code sections here involved, 26 U.S.C. §§ 3121(d)(2) and 3306 (i), are elaborated in corresponding sections of the Treasury Regulations, 26 C.F.R. §§ 31.3121 (d)-l and 31.3306 (i)-1, which provide:

“Generally such relationship exists [of employer-employee] when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work to the individual who performs the services.”
* •* * * •» *
“Whether the relationship of employer and employee exists will in doubtful cases be determined upon an examination of the particular facts of each case.” (Emphasis added.)

Thus, control, either actual or the right to it, is the basic test used to determine the relationship in question. Here there were no supervisory employees, no officers, no garages, no radios, no dispatchers, no telephones, and no regular contact between appellees and their drivers. On the other hand, the drivers had regular working hours, were limited as to where they could pick up customers, could not use cabs for their personal use, were required to account for fares by submitting “trip sheets,” and were required to split (after deducting amounts spent for gas and oil) their fares evenly with appellees. This arrangement closely resembles that in Fleming, supra, where the court held that the taxpayers were conducting a business as a common carrier with employees rather than the rental operation as found in Party Cab, supra. The Internal Revenue Service has also ruled that the receipt or fare sharing arrangement diminishes the likelihood of a true lessor-lessee relationship because of the company’s interest in receipt of the maximum amount of income possible in return for its financial risks. Rev.Rul. 71-572, 1971-2 Cum.Bull. 347. Where a company has a general measure of control over the manner in which services of their taxicab drivers are performed, such as operation in a restricted territory, control of hours worked, and the governing of income to the drivers, the employer-employee relationship exists for purposes of the federal employment taxes. Cf. Westover v. Stockholders Publishing Co., 237 F.2d 948 (CA9 1956).

Even if actual control was absent, it is the right to control which is determinative. In McGuire v. United States, 349 F.2d 644, 646 (CA9 1965) the court stated:

“The absence of need to control should not be confused with the absence of right to control. The right to control contemplated by the Regulations relevant here and the common law as an incident of employment requires only such supervision as the nature of the work requires.”

Where the nature of a person’s work requires little supervision, there is no need for actual control. Some occupations such as unloaders, see McGuire, supra; United States v. Kane, 171 F.2d 54, 59 (CA8 1948), or doctors, Cody v. Ribicoff, 289 F.2d 394 (CA8 1961); Flemming v. Huycke, 284 F.2d 546 (CA9 1960), are unsuited to direction and close control by an employer. In the instant ease, the nature of appellees’ businesses simply do not require close hour by hour supervision, but the right to control is not lacking.3

Other factors in this case lead us to believe that the employer-employee relationship exists. The cab drivers have no capital investment in the business. They do not even supply their own oil or gas. All they provide is their labor since the company owns the taxicabs and purchases liability insurance. Daily reporting sheets must be submitted by the drivers to the company. The appellees may discharge the drivers for cause pursuant to the labor contract. See Treasury Regulations, supra. Moreover, the companies provide fringe benefits such as paid vacations and holidays, sick leave, and pension plans. All of these are consistent with an employer-employee relationship. These taxicab drivers were performing personal services constituting an integral part of appellee’s business operations. They were not pursuing any separate trade, business, or profession involving capital outlay and were subject to general control over the manner and means of performing their services. They were, in effect, common-law employees for purposes of federal employment taxes here involved.

Reversed.

      . Alleged liability for Air Terminal for all taxes due is stipulated to be $71,235.02. Airway’s liability is $60,778.86.

      . Appellees in their brief contend that the term “owner-drivers” found in the labor contract excludes their drivers because they do not own their own taxicabs. We agree. Read in its entire context, the labor contract’s use of the term refers only to situations where the driver owns his own cab. Other parts of the labor contract, however, do apply to the appellees’ drivers.

      . Revenue Ruling 71-572 was issued in 1971 after the appellees filed their suits for refund on May 21, 1971.
      Attached to the stipulation of facts in the record is a letter ruling by the Internal Revenue Service to the District Director of St. Louis, Mo., which pertains to Laclede Cab Co. and Red Top Cab Company which also operate under franchi-es in St. Louis County. Appellee relies on this letter for support. In those situations. a daily rental fee was paid by the drivers for the use of the taxicabs. The drivers could use the taxicab for a maximum shift, obtain orders from the company’s radio dispatcher and generally operate as a taxicab. There was a union contract, similar to those herein. The driver, however, paid all expenses and retained for himself all fares. It was held by the I.R.S. that the Laclede and Red Top drivers were not employees for employment tax purposes. The instant case is distinguishable, however, in the method that the financing is arranged. The Laclede and Red Top drivers rented the taxicabs and ran their own business, quite similar to the Party Cab case. The fare-splitting arrangement in the instant case is similar to Fleming where a similar arrangement resulted in the employer-employee relationship.

      . Appellees base much of their argument on the fact that the taxicabs are not equipped with two-way radios or any kind of a dispatcher system. The nature of the appellees’ businesses is such that such a system is unnecessary because almost all passengers are picked up at the airport on a random basis. This feature is not determinative of control. Almost all of the taxicab cases we have read involve a dispatcher system of some type, but the decisions have gone both ways.

      . See Restatement (Second) of Agency § 220 (1958) for a summary of common law factors to be considered in finding the employer-employee relationship. Missouri has accepted the criteria set out in the Restatement of Agency for determining whether or not an employer-employee relationship exists. Dean v. Young, 396 S.W. 2d 549, 553 (Mo.1965). The element of control, or right to control is most frequently used in Missouri cases as distinguishing a servant from an independent contractor. Id. Thus, Missouri’s common law on this issue is consistent with the federal law.


source: Caselaw Access Project

author: HOLLOWAY, Circuit Judge.

license: Public Domain

text:
    H. Gordon HOWARD, Plaintiff-Appellant, v. The STATE DEPARTMENT OF HIGHWAYS OF COLORADO et al., Defendants-Appellees.
    No. 72-1010.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 21, 1972.
    Decided May 18, 1973.

      H. Gordon Howard, pro se.
    Loyal W. Trumbull, Asst. Atty. Gen., Denver, Colo. (Duke W. Dunbar, Atty'. Gen., and Joseph M. Montano, Chief Highway Counsel, Asst. Atty. Gen., Denver, Colo., on the brief), for appellees.
    Before BARNES, HILL and HOLLOWAY, Circuit Judges.

       Honorable Stanley, N. Barnes, of the Ninth Circuit, sitting by designation.

   HOLLOWAY, Circuit Judge.

Appellant Howard brought this suit challenging the validity under the federal constitution and antitrust laws of the Colorado Outdoor Advertising Act, as amended, § 120-5-2 et seq., Colorado Revised Statutes Annotated, 1963 (1971 Supp.). Among other things, Howard asserted the unconstitutionality of the statute under the First Amendment guarantee of free speech, the due process, equal protection and privileges and immunities clauses and Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1 and 2. He alleged that the defendants were threatening him with fine and imprisonment for violation of the statute, by threatening letters, and were attempting to deprive him of his property rights in leases and highway information and directional signs to Pine Lake Trailer Resort and Campground, which he owns and operates. He invoked the provisions of 28 U.S.C.A. § 1343(3) and 42 U.S.C.A. §§ 1983 and 1985(3), and prayed for a declaratory judgment, or an injunction, prohibiting and enjoining defendants from enforcing the allegedly unconstitutional act and for damages.

The defendants moved to dismiss, among other things claiming Eleventh Amendment immunity for the State and the Department, and asserting that the complaint failed to state a claim for relief. By brief they argued for abstention to permit proceedings in the state courts of Colorado. The district court, as a single judge, determined that abstention was appropriate and dismissed the action without prejudice, and Howard appealed. For reasons that follow we affirm the dismissal on different reasoning than that of the district court.

At the hearing where the dismissal ruling was announced the court indicated that jurisdiction was proper, but that it was appropriate to abstain from exercising such jurisdiction to permit state court proceedings. As noted, the suit sought an injunction against the enforcement of the state statute on grounds of its unconstitutionality. This raises the question whether the three-judge court requirements of 28 U.S.C.A. §§ 2281 and 2284 apply. The bringing of such a suit does not compel the convening of a three-judge court if a substantial federal question is not presented, see Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152; but the single judge may not, if jurisdiction exists, make the determination to abstain and withhold relief. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794; see also Goosby v. Osser, 409 U.S. 512, 516-517, 93 S.Ct. 854, 35 L.Ed.2d 36 (decided 1/17/73); A.L.I., Study of the Division of Jurisdiction Between State and Federal Courts 330; Wright, Federal Courts (2d Ed.) 193. The determination to abstain and withhold relief is a function of the three-judge court in such a case. See Goosby v. Osser, supra at 522, 93 S.Ct. 854.

The single judge need not request a three-judge court if no substantial federal question is presented, and instead he may dismiss for want of jurisdiction. Goosby v. Osser, supra, at 522, 93 S.Ct. 854; Ex parte Poresky, supra 290 U.S. at 31-32, 54 S.Ct. 3; Firkins v. Colorado, 434 F.2d 1232, 1233 (10th Cir.).

However, the Supreme Court has made it clear that strict standards must be met before the court may conclude that the case is insubstantial. “In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claim frivolous . . . ” Goosby v. Osser, supra at 518, 93 S.Ct. at 859.

In this case we conclude that the complaint presents no substantial federal question for reasons that follow, and, therefore, affirm the dismissal as proper for lack of jurisdiction. While this three-judge court problem was not presented to the trial court or here by the parties, it is jurisdictional and may not be waived. Stratton v. St. Louis Southwestern Railway Co., 282 U.S. 10, 13, 15, 51 S.Ct. 8, 75 L.Ed. 135; Riss & Co. v. Hoch, 99 F.2d 553, 555 (10th Cir.); Americans United for Separation of Church and State v. Paire, 475 F.2d 462 (1st Cir., 3/16/73); see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 9 L.Ed.2d 644. We have noted the problem because of its jurisdictional nature and its effect on the disposition which we feel is properly a dismissal for want of jurisdiction.

The amended complaint of Howard alleged essentially these facts. Howard is the owner and operator of Pine Lake Trailer Resort and Campground located on Colorado Highway #14, Weld County, Colorado. He is also the lessee of ground on which the signs are located.

The defendants are the State of Colorado; the State Highway Department, a State subdivision; Charles Shumate, chief engineer and head of the Department; A1 Bower, deputy chief engineer and head of the sign department of the Colorado Highway Department; and Milo Ballinger, superintendent at Greeley for the Department. Howard avers that the defendants are threatening him with fines and imprisonment for violation of the Colorado Outdoor Advertising Act. Two notices were sent him by defendant Ballinger, stating that two roadside advertising devices referring to the Pine Lake Campground were in violation of the Act, being in the nature of advertising to motorists traveling on a Federal Aid Highway, and there being no required permit for the signs. Notice was given to remove the signs or to apply within thirty days for a permit. The notices also referred to possible conviction and fine up to $1,000 for offenses under the Act.

The amended complaint further alleged that Howard’s rights arise under the due process clause of the Fourteenth Amendment; that the Act is an unconstitutional zoning law, attempting to legislate out of existence a legitimate informative and advertising business; that the statute was being used to take Howard’s property without just compensation ; that the statute denies due process and is arbitrary and discriminatory in violation of the Fourteenth Amendment; and that the statute unlawfully operates to establish a monopoly in violation of the antitrust laws. On brief Howard argued to the district court and here that the statute also unconstitutionally denies First Amendment rights of free, speech.

As amended the Colorado Outdoor Advertising Act prohibits the erection or maintenance of any advertising device, as defined in the act, which is designed, intended or used to advertise or to give information in the nature of advertising visible to the public traveling on the main traveled way of the state highway system unless the advertising device is erected and maintained in accordance with provisions of the article. § 125-5-12. The “State Highway System” includes the interstate highways and federal aid roads. § 120-13-1. With certain exceptions provided in § 120-5-18, all such devices are prohibited except where a permit has been obtained. Other sections of the amended act completely forbid the issuance of permits under certain circumstances. § 120-5-23.

We are satisfied that the complaint presents no substantial federal question as to the validity of the statute. The Supreme Court has long sustained exercises of the police power of the states for regulation and prohibition of various forms of outdoor commercial advertising. See, e. g., Railway Express, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533; Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262; Fifth Avenue Coach Co. v. New York, 221 U.S. 467, 31 S.Ct. 709, 55 L.Ed. 815; Packer Corporation v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643. Moreover similar statutes restricting roadside advertising have been upheld in several decisions against similar constitutional challenges. See, e. g., Elliott Advertising Co. v. Metropolitan Dade Co., 425 F.2d 1141 (5th Cir.), cert. dismissed, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35; Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248; Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573 (Ky.); New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N.Y.2d 151, 218 N.Y.S.2d 640, 176 N.E.2d 566; contra,, State Highway Department v. Branch, 222 Ga. 770, 152 S.E.2d 372. In the Markham case the Washington Highway Advertising Control Act was upheld against the due process claims of arbitrariness and denial of just compensation, as well as equal protection and free speech claims among others. Moreover the Supreme Court subsequently dismissed an appeal of the Markham case for want of a substantial federal question. Markham Advertising Co., Inc. v. Washington, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512, rehearing denied, 393 U.S. 1112, 89 S.Ct. 854, 21 L.Ed.2d 813.

We have considered cases bearing on free speech relied on by appellant Howard, Tobin Imports, Inc. v. Rizzo, 305 F.Supp. 1135 (E.D.Pa.); and Close v. Lederle, 303 F.Supp. 1109 (D.Mass.), reversed, 424 F.2d 988 (1st Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140. We feel there is no substantial support in these cases for a claim of denial of free speech where only commercial advertising and directional signs are involved. In sum we are satisfied that appellant Howard’s constitutional claims raised no substantial federal question.

Appellant Howard also alleged that the Colorado Act was invalid under the federal antitrust laws. He argues that the Act empowers the State, which maintains campgrounds and outdoor recreational facilities, to enter the field of private business as a monopoly. The argument is without substance. Where a monopoly or restraint of trade is a result of valid state action, there is no antitrust violation. Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315; see California Transport v. Trucking Unlimited, 404 U.S. 508, 516 n. 3, 92 S.Ct. 609, 30 L.Ed.2d 642 (Stewart, J., concurring).

Appellant argues that 28 U.S.C. A. § 1343 and 42 U.S.C.A. §§ 1983 and 1985(3) are separate sources of rights and federal jurisdiction. However the statutes clearly create no separate rights themselves but instead confer remedies for enforcement of rights arising under the Constitution or federal law, and make a grant of federal jurisdiction to hear such cases. Since the complaint shows no violation of rights under federal law, the remedial and jurisdictional statutes add no substance to appellant’s ease. See Stringer v. Dilger, 313 F.2d 536, 540 (10th Cir.).

For these reasons we conclude that no substantial federal question was presented and that a dismissal for want of jurisdiction was proper. See Ex Parte Poresky, supra 290 U.S. at 32, 54 S.Ct. 3; Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939. Accordingly the judgment is modified to provide that the action is dismissed for want of jurisdiction, and as modified, is affirmed.

      . § 120-5-18 provides in part as follows:
      “(2) (a) Tlie following advertising devices shall not require permits under this article:
      (b) (Repealed) , . . . ;
      (c) Advertising devices advertising the sale or lease of the property on which they are located;
      (d) Advertising devices advertising activities conducted on the property on which they are located;
      (e) Advertising devices which are located in areas which were zoned industrial or commercial under authority of state law prior to January 1, 1970.”

      . See also Moore v. Ward, 377 S.W.2d 881 (Ky.) ; General Outdoor Advertising Co. v. Department of Public Works, and fourteen other cases, 289 Mass. 149, 193 N.E. 799, appeals dismissed, 297 U.S. 725, 56 S.Ct. 495, 80 L.Ed. 1008; People v. Goodman, 31 N.Y.2d 262, 290 N.E.2d 139; Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 200 N.E.2d 328 (Ohio). And see People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272, appeal dismissed for want of a substantial federal question, 375 U.S. 42, 84 S.Ct. 147, 11 L.Ed.2d 107.

      . We have examined the jurisdictional statement in the Markham, case. In presenting the constitutional issues to the Supreme Court of the United States, the statement included the constitutional claims mentioned above and rejected by the Washington Supreme Court.


author: PER CURIAM. LEVENTHAL, Circuit Judge:

text:
    UNITED STATES of America v. George Gordon LIDDY et al. (two cases). In re TIMES MIRROR COMPANY (two cases). Appeal of John LAWRENCE. Appeal of Jack NELSON and Ronald J. Ostrow.
    Nos. 73-2210, 72-2211.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 20, 1972.
    Decided Dec. 20, 1972.
    Mr. J. Roger Wollenberg, Washington, D. C., argued for appellant, Times Mirror Co. with whom Messrs. Timothy B. Dyk and Daniel Marcus, Washington, D. C. , were on the motion.
    Mr. Herbert J. Miller, Jr., Washington, D. C., argued for appellants, Jack Nelson and Ronald J. Ostrow with whom Mr. Martin D. Minsker, Washington, D. C., was on the motion.
    Mr. William O. Bittman, Washington, D. C., argued for appellees.
    Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.
   ORDER

PER CURIAM.

On consideration of the emergency motions of the Times-Mirror Company and Jack Nelson and Ronald Ostrow for stay pending appeal, it is

Ordered by the Court that the aforesaid motions are denied.

The denial of this stay is suspended until 5 p. m. Friday, December 22, thereby leaving in effect until that time the order of this Court entered on December 19, 1972, to permit application to the Supreme Court for certiorari if this step is desired. If application for cer-tiorari is made the stay will continue until an order is entered in these cases by the Supreme Court.

Circuit Judge LEVENTHAL would extend the stay in any event until close of business Friday, January 5, 1973, and order that the subpoena be returnable at that time, and subject to the conditions set forth in his opinion filed herewith.

LEVENTHAL, Circuit Judge:

I would extend the stay to close of business Friday, January 5, 1973, in order to provide better opportunity for making application to the Supreme Court. Such opportunity is, I think, particularly appropriate since this case involves an estimate as to the implications for criminal trials of the Supreme Court’s opinion last Term in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

In making an estimate of the probability of success on appeal, I begin with the premise that the Branzburg decision is controlled in the last analysis by the concurring opinion of Justice Powell (408 U.S. at 709, 92 S.Ct. at 2670) as the fifth Justice of the majority. That opinion holds, as I understand it, that there is no universal constitutional privilege of a newsman to keep confidential the identity of his sources and the content of their revelations. The assertion of that privilege may, however, come to involve a question under the First Amendment freedom of the press, and in such case there will be need for balancing that assertion against the need for the material in the interest of society, as in a case where a newsman has “reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement.” (p. 710, 92 S.Ct. at 2671). That does not require a demonstration of either total lack of legitimacy or utter lack of any possible need, for it may be raised on a claim that the information desired of the newsman has only a “remote” relationship to the subject of the investigation. As to the conduct of the balancing test, Justice Powell made it clear that the judge is “free to balance the competing interests on their merits in the particular case.” He stated (p. 710, 92 S.Ct. at 2671):

The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a ease-by-case basis accords with the tried and traditional way of adjudicating such questions.

Branzburg’s precise decision was limited to the need of a grand jury, but there are references in the opinion which indicate an intention for applicability to a criminal proceeding. And in a larger sense the grand jury’s investigation is part of the functioning of the judiciary branch of the government, as is the conduct of a criminal trial before a petit jury.

In a grand jury context, the First Amendment considerations cannot prevail, e. g., to preclude a witness from giving information as to a crime he has witnessed. But it may require that the trial judge determine that society has an interest in the subject matter of the proceeding that is “immediate, substantial, and subordinating,” that there is a “substantial connection” between the information desired of the witness and the overriding interest of society in the subject matter of the investigation — “and that the means of obtaining the information is not more drastic than necessary to forward the asserted governmental interest”, an inquiry which might require the proceeding to move forward deliberately, and reflectively, step-by-step. Bursey v. United States, 466 F.2d at 1083.

In a grand jury context there are protections, while such matters are being reflected upon, because of the secrecy of the grand jury- — a matter that was made the point of special notation in the Branzburg opinion. This indicates that where such a question arises in the context of a criminal proceeding the need of society for public-trial release of the information may require, under the less-drastic means principle, that the need for this first be reviewed and determined in proceedings that are held by the court in camera, and with only counsel in attendance as at a side-bar conference.

In the present case, the need of society is asserted by counsel for the defense in a criminal proceeding for impeachment of a government witness. This is a case where the newsman’s source is known, and indeed the information was revealed in a first-person interview. This dilutes but it does not remove the First Amendment consideration of the importance to a newsman — and to the information of the public at large, through the press — of the content of the interview obtained under a pledge of confidentiality. Affidavits of John Sei-genthaler, Robert J. Manning, James C. Hagerty, Edwin O. Guthman and William F. Thomas. At the same time, it has a bearing on the definition of society’s need for the information.

In general, pre-trial statements by a prospective government witness “ripen into evidentiary material for purposes of impeachment if and when, and only if and when, the witness who has made the statement takes the stand and testified.” This is subject to the interest of the court, especially in facing a protracted trial, and here the jury is to be sequestered, to make appropriate pretrial provision, in order to prevent unfairness and avoid undue delay at trial.

Recognizing that this court is not in a position to make definitive rulings at this time, a fair estimate of the result that would be forthcoming on appeal, leads me to conclude that the return date of the subpoena should be postponed to Friday, January 5, 1973, that it should provide that the material will be lodged with the trial court and not be disclosed to counsel prior to the completion of the direct testimony of Mr. Baldwin; that it will not then be released pursuant to the subpoena unless and until the trial judge has made inquiry of the possibility of less drastic means, including at least inquiry of Mr. Baldwin whether he will permit its release, and if not to state the reasons therefor; that the trial judge will have had a pretrial opportunity to consider the matter but he will not provide for release unless he makes a determination at that time (following Baldwin’s direct testimony) that there is a need therefor; that the first release will be solely to counsel in camera, and there will be no release at public trial until the trial judge determines that there is a need for such pub-lie-trial disclosure. Under those circumstances, however, and with such a determination of need, there would appear to be no First Amendment interests that outweigh the need for such disclosure.

      . Bursey v. United States, 466 F.2d 1059, 1082 (9th Cir. 1972).

      . United States v. Rothman, 179 F.Supp. 935, 937 (W.D.Pa.1959) ; Jencks Act, 18 U.S.C. § 3500.

      . Rule 17 (c), F.R.Crim.Proc.; Shores v. United States, 174 F.2d 838, 845 (8th Cir. 1949).

      . This procedure may obviate the need for decision of the constitutional issue.


author: PER CURIAM:

text:
    Howard PASTERNACK, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE.
    No. 71-1592.
    United States Court of Appeals, District of Columbia Circuit.
    Jan. 4, 1973.

      Mr. Howard Pasternack, pro se.
    Mr. Fred B. Ugast, Acting Asst. Atty. Gen., U. S. Dept, of Justice, was on the pleading for appellee. Mr. Meyer Roth-wacks, Atty., Dept, of Justice, also entered an appearance for appellee.
    Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.
   PER CURIAM:

On November 3, 1966, appellant, a United States citizen residing in London, England, filed a pro se petition with - the United States Tax Court for redetermination of tax deficiencies for 1962 and 1963, of $607.30 and $480.41 respectively. His petition contested the disallowance of dependency deductions for his two children. After trial held on January 26, 1970, the Commissioner’s motion to dismiss appellant’s case for lack of prosecution, due to his nonappearance at trial, was granted by order entered on February 17,1970.

In a letter that was received by the Tax Court on March 24, 1970, more than 30 days after judgment was entered, appellant objected to the decision. The Tax Court through inadvertence misplaced this letter. Upon its rediscovery, the Court, on November 10, 1970, entered an order granting special leave to file the March 24 letter as a motion to vacate the February 17, 1970, judgment, and simultaneously granted the motion.

On March 31, 1971, the Tax Court granted the Commissioner’s motion to vacate the November 10, 1970, order, on the ground that the February 17, 1970 order had become final, 90 days after entry, and the Tax Court was without jurisdiction to disturb it. Appellant timely filed a notice of appeal from that decision. He was unable to appear for oral argument. We entered an order to decide the case without oral argument, have studied the briefs and the file, and come to the conclusion that reversal is in the interest of justice.

I. FAILURE TO APPEAR AT TRIAL

This case requires reference to the procedural background of the default judgment that the Commissioner contends became final, beyond power to vacate or modify. We agree, for reasons to be stated, with the taxpayer’s claim that irregularities ascribable to the Tax Court and the Commissioner, and not any fault of the taxpayer, are primarily accountable for the entry of the February 17,1970, default judgment.

The Tax Court’s Rules contain provisions for a Report Calendar and for a Trial Calendar.

The Report Calendar Rule provides for reports of the progress of the litigation and permits the setting of tentative trial dates. The Tax Court, on three separate occasions between October 1967 and March 1969, sent Orders for Trial Status Reports to appellant in London which proposed tentative trial dates. In each instance taxpayer replied that his work in London precluded attendance except during his summer vacation. Each time the case was rescheduled.

On July 31, 1969, the Court sent a Trial Status Report proposing a January 26, 1970 trial date. This notice was sent to the same address as previous correspondence, “c/o EURNAVFACE-NGCOM, Box 69, FPO New York, N.Y. 09510,” a government address which had been used by appellant, as an employee of the United States Navy in London. The form provision set forth that the Report—

“shall, not earlier than 75 days, nor later than 80 days, after the date of this Order, be submitted to the Court.”

Receipt of this notice was delayed, due to a change of address incident to appellant’s new employment. His response was dated November 4, 1969. It was thus received by the Court more than 80 days after its order issued, but prior to the scheduled January 26, 1970 trial date. Appellant’s letter advised the Court of his change of address and his inability to attend, and suggested that the trial be conducted through affidavits taken at the U.S. Embassy in London or by the local U.S. Internal Revenue Ad-visor.

The Tax Court’s Trial Calendar Rule provides that the parties will be notified not less than 90 days in advance of the trial date. On October 24, 1969, the Court sent a notice to appellant at his original government address that the trial was scheduled for January 26, 1970. No supplemental notice was sent when the Court was advised by appellant’s letter of November 4 of his new address. Apparently this notice reached appellant after the trial date. The notice stated: “Failure to appear will be taken as cause for dismissal in accordance with Rule 27(c)(3) of the Court’s Rules of Practice.” That Rule provides:

Attendance at trials. The unexcused absence of a party or his counsel when a case is called for trial will not be the occasion for delay. The case may be dismissed for failure properly to prosecute or the trial may proceed and the case be regarded as submitted on the part of the absent party or parties.

Although appellant was not in receipt of this notice prior to trial he was then engaged in correspondence with the Commissioner concerning the possibility, which appellant had initiated at some previous time, of presentation of the case on a set of stipulated facts.

The Commissioner sent two letters with proposed stipulations. They were sent to the home (and therefore correct) address. But the Commissioner’s letters, unlike those of the Tax Court, were sent by surface mail. The first letter, sent November 17, 1969, was received by appellant on January 12, 1970. The second letter, sent December 24, 1969, arrived before the first, on January 2, 1970. In the December 24 letter, the Commissioner asked why there had been no response to his November 17 letter concerning stipulations, and also advised the taxpayer that failure to appear at the scheduled January 26, 1970, trial would result in a dismissal for lack of prosecution. The taxpayer responded immediately on January 2 that he had not yet received the November 17 letter and hoped, due to what he believed to be the strength of his case, dismissal would not result. He also indicated that he would be pleased to attempt to arrive at some stipulation. The proposed stipulation was received on January 12, 1970, and on January 13, the appellant responded, raising certain questions about the stipulations. In response to an apparent reference in the Commissioner’s letter (which had been sent November 17) about the impending January 26, trial, appellant referred the Commissioner to his November 4 reply to the Trial Status Report, wherein he had requested a new trial date. Thus, the Commissioner and the Tax Court had both been informed about the requested delay. Nevertheless, on January 26, 1970, the Tax Court called the case for trial, with results now to be described.

The IRS counsel moved to dismiss for lack of prosecution. The Court asked: “Did you receive some indication that he wouldn’t be present?” Counsel replied that taxpayer was out of the country, no longer working for the Government, that counsel had advised taxpayer by letter of December 24 that it was the policy of the government to move orally for dismissal for lack of prosecution, of the petition of any taxpayer who did not appear at the time the case was calendared for trial. IRS counsel continued: “I received an answer to that correspondence by letter dated January 2, and Mr. Pas-ternack said he didn’t want to lose by default but he didn’t say he was going to appear for trial.” Counsel further stated:

By letter dated January 13, he advised this office in one of the paragraphs that he had advised the Tax Court that he wouldn’t be able to make it. I, therefore, cheeked with the national office and they checked with the Tax Court and they phoned me back and said that the Tax Court had no information in this regard.

The Court indicated it would grant the Commissioner’s motion to dismiss appellant’s case for lack of prosecution, and the order was entered on February 17, 1970.

Plainly, the Tax Court was not aware of appellant’s inability to be at trial. In addition, Judge Fay was not aware of taxpayer’s suggestion that the trial be conducted through affidavits. Even more significantly, the judge was not advised of the significant fact that there were stipulation negotiations in progress. Government counsel merely identified Mr. Pasternack’s January 13 reply to the IRS letter of January 2 by reference to taxpayer’s statement that he did not want to lose by default. Counsel gave not a hint, breath, or glimmer of reference to the content of the taxpayer’s letter as one that was responsive to 'the Commissioner’s proposal for stipulation. We are much troubled by the selective nature of the presentation of the situation by Government counsel, given the absence of counsel for the taxpayer.

If the Tax Court had been in possession of appellant’s response before the trial no default would have been entered. Judge Fay made this crystal clear — both by vacating the default judgment, and by his remarks at the subsequent hearing when he said that the Court had entered its default decision “in a blind way — without all the facts before it”, but nevertheless, concluded he was compelled to undo that corrective order.

At the very least, appellant’s letter was timely as a motion for a continuance. The Tax Court’s Rule 27(d) provides:

Continuances — motions—trials. (1) Court action on cases set for hearing on motions or trial will not be delayed by a motion for continuance unless it is timely, sets forth good and sufficient cause, and complies with all applicable Rules.

While continuances are within the sound discretion of the Tax Court, Balestrieri & Co. v. C. I. R., 117 F.2d 867 (9th Cir. 1949), certainly Rule 27(d) cannot fairly be reconciled with a procedure that resulted in no consideration to proposed reasons for postponement.

II. FINALITY OF JUDGMENT

Appellant first learned of the default on March 16, 1970, when he received the Commissioner’s letter dated February 9, 1970, sent by surface mail, which advised that the proposed stipulations had become moot. In his reply on the same date to the Tax Court, appellant recounted his response to the Trial Status Report, his negotiations with the Commissioner on proposed stipulations, and his belief that the trial was not to be held on January 26, 1970. His letter ended with this paragraph:

I would be very grateful, in the event my case has been dismissed, to reconsider it in the light of the background herein presented. If even this is not possible, kindly advise me of any rights of appeal open to me.

This letter was received by the Tax Court on March 24, 1970, which, under Tax Court rules for the computation of time, was 35 days from the date of judgment, February 17, and thus not within the 30 day period allowed for making a motion for reconsideration This document was inadvertently misplaced, as Judge Fay noted in his November 16, 1970, ruling vacating the default.

The Commissioner contended that the February 17, 1970, judgment became final and unappealable on May 18, 1970, and that the Tax Court was without jurisdiction on November 16, because the 90 day appeal time had expired to grant the taxpayer relief. The Tax Court adopted this view on March 31, 1971, and vacated its prior order, thereby reinstating the default judgment.

Although courts must normally adhere to statutory commands of finality, such commands are normally read in the light of an overriding interest of correcting injustice whenever there is fraud on the court or the integrity of the judicial process or functioning has been undercut. We do not reach the finality question, however, since we think appellant’s March 24 letter, and particularly the last sentence quoted above, conveying intent to appeal if reconsideration was not possible, is fairly to be taken as a notice of appeal. As the Ninth Circuit noted in Yanow v. Weyerhaeuser S.S.Co., 274 F.2d 274, 282-283 (1959):

There is a considerable body of authority indicating that in determining whether an attempted appeal has been accomplished, most informally drawn papers and improperly labeled documents have been held sufficient to accomplish the apparent objective of taking an appeal. . .• .
The rationale of the cases relating to informal or irregular appeals is that notwithstanding the papers filed were inaptly worded, or labeled, or even failed to use the word “appeal”, or were filed in the wrong court, yet they sufficed to show the party intended to appeal.

This approach, of treating the letter as a notice of appeal, is fortified by the background of this case; the dismissal would not have been entered but for the loss by the Tax Court of appellant’s response to the calendaring notice, and the somewhat selective answers of the Commissioner to the Tax Court’s inquiries regarding the status of the case. It is fair to assume that in view of appellant’s lack of ready availability for trial in the United States, the Tax Court would at least have recessed for inquiry whether this case might not proceed by stipulations, affidavits, or deposition.

Under the view we have taken of this case, this court has before it not only an appeal from the Tax Court’s order of March 31, 1971, but also an appeal from the default of February 17, 1970. In light of appellant’s timely appeal of March 24, 1970, we vacate the judgment of February 17, 1970. The default judgment was entered on the basis of a record that was misleading to the trial judge — because of the non-filing of the letter sent to the Tax Court by appellant on November 4, 1969, and the selective presentation ' of IRS counsel — and its maintenance is not in the interest of justice, see 28 U.S.C. § 2106.

Reversed and remanded for further proceedings.

So ordered.

      . Rule 27(b), United States Tax Court Rules of Practice (hereinafter TCRP) provides;

        Report Calendars. On a calendar specifically set for the purpose or on a trial calendar, and after due notice of the time and place given to the parties by the Clerk, any cause at issue may be listed and called, first, for report as to whether the case is to be tried or otherwise disposed of, and if the latter, to report on its status, and second, if it is to be tried, for report on the current status of preparations for trial, particular reference being given to the requirements of Rule 31(b) [which relates to stipulations].

      . The proposed dates for trial and the Status Order dates are as follows: April 1, 1968 by Order of October 2, 1967; December 2, 1968 by Order of May 20, 1968; and June 16, 1969 by Order of December 10, 1968.

      . Up until the termination of his government job, appellant regularly came to the United States during the summer on vacations paid for by the government. As can be seen from the dates proposed for trial, note 2, supra, a summer date was only proposed in the third Order. The June 16, 1969 date was not acceptable since appellant was not entitled to take another paid vacation to the United States until 1970.

      . Rule 27 (c), TCRP, provides :

        Trial Calendars (1) Each case, when at issue, will be placed upon a calendar for trial in accordance with Rule 26 [relating to Place of Trial; request and designation] and the Clerk, not less than 90 days in advance unless otherwise authorized by the Chief Judge, will notify the parties of the place where and the time when it will be called.

      . There is no reference in the record that this notice was ever received, though the records of the Tax Court indicate that it was sent to appellant’s old address.

      . The taxpayer had attempted at an earlier stage in the litigation to negotiate a set of stipulations but the Commissioner had not cooperated.

      . Additional notice was supplied to the Tax Court of this fact since the taxpayer sent copies of his correspondence with the Commissioner to the Court. If these letters had been on file, Judge Fay would have been alerted to the fact that the reply to the Status Report was missing.

      . The Government agreed to drop a deficiency claim against petitioner’s former wife.

      . See pp. 8-9 Tr. of Hearing, Feb. 26, 1971, where Judge Fay stated:
      [the] Court was not aware of what was in the record. And the Court, so to speak, in a blind way entered a decision. Without all the facts before it. The facts which were available to the Court —and I entered an order to dismiss. And then, some time subsequent thereto, it came to my attention that there was a document in the Court’s file, or it should have been in the Court’s file. . . . It wasn’t the fault of the taxpayer. It was the fault of the Court. And, the Court without that document would not have entered the decision that was entered. .
      Judge Fay did not specifically refer to the fact that appellant had not filed a response to the Status Report within the 80 day time period. But in a prior response to a proposed trial date, when appellant exceeded the time limit set, due to constant travel requirements, his trial date was rescheduled.

      . The Tax Court’s Rules of Practice do not provide that notice of default judgment be served upon the defaulting party. Any possible issue of due process that might be raised in this regard is not reached here due to the view we take of this case. Suffice it to say, that ordinarily a taxpayer will be advised of the probability of default judgment being entered, if he does not appear for trial, in the required trial notice, which Mr. Pasternack never received. It was, therefore, a fortuity that he was so advised by the Commissioner, who had no obligation to perform that act.

      . Rule 61, TCRP.

      . Rule 19(e) provides: No motion for retrial, further trial or reconsideration may be filed more than 30 days after the opinion has been served, except by special leave. Although appellant mailed his response within the 30 day period, this was not timely under Treasury Regulation on Procedure and Administration, 301.7502-1-(c) (ii) (1972) which provides that timely filing is governed by the date of receipt in the case of a letter bearing a foreign postmark.

      . Order of the Tax Court, Docket No. 6081-66, November 10, 1970.

      . 26 U.S.C. § 7483 (Supp.1972).

      . See Denholm & McKay Co. v. Commissioner, 132 F.2d 243 (1st Cir. 1942).

      . Kenner v. C.I.R., 387 F.2d 689, 691 (7th Cir. 1968).

      . Greater Boston TV Corp. v. FPC, 149 U.S.App.D.C. 322, 463 F.2d 268, 278 (1971).

      . See Rule 30, TCRP, which provides for Submission Without Trial or Appearance, and Rule 31, which provides for Stipulations.

      . The November 16, 1970 and March 31, 1971, Tax Court orders were entered on the assumption that appellant’s March 24, 1970, letter was only a motion to vacate. Since in our view it is also properly taken as a notice of appeal, and the February 17, 1970, default judgment must be vacated, we need not give further consideration to the subsequent orders of the Tax Court.