opinion: In re ROGERS’ ESTATE. STICKNEY et al. v. COMMISSIONER OF INTERNAL REVENUE.
  No. 261.
  Circuit Court of Appeals, Second Circuit.
  July 6, 1944.
  John W. Drye, Jr., and Theodore Pearson, both of New York City (William H. Harrar, of New York City, of counsel), for petitioner.
  Samuel O. Clark, Jr., Sewall Key, and Morton K. Rothschild, all of Washington, D. C., for respondent.
  Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.
  FRANK, Circuit Judge.
  1. The Tax Court held, and the taxpayers and the Commissioner now agree, that the sale was an installment sale within the meaning of § 44(b) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Code, § 44(b). We think that the Tax Court correctly held that the subsequent transfers by the executors of the installment obligations to various trusts of which the executors were themselves trustees and to an escrow agent for a residuary legatee, were within the provisions of § 44(d), “distributed, transmitted, sold, or otherwise disposed of.” Maguire v. Commissioner, 313 U.S. 1, 61 S.Ct. 789, 85 L.Ed. 1149; and Helvering v. Gambrill, 313 U.S. 11, 61 S.Ct. 795, 85 L.Ed. 1155, are most persuasive here, although in those cases the tax arose under § 113(a)-5 of the 1928 Revenue Act, 26 U.S.C.A. Int.Rev.Acts, page 380. Taxpayers’ contention that these transfers were transactions without real substance, because the installment obligations vested in the beneficiaries from the moment the obligations were acquired by the estate, is substantially the position taken by this court in its opinion in Commissioner v. Gambrill, 2 Cir., 112 F.2d 530, which was reversed by the Supreme Court in Helvering v. Gambrill, supra. In Brewster v. Gage, 280 U. S. 327, 50 S.Ct. 115, 74 L.Ed. 457, the question here before us was not considered; it is to be noted, too, that Brewster v. Gage was relied upon in this court in reaching its reversed decision in the Gambrill case.
  2. We also agree with the Tax Court that the capital gain resulting from the sale of decedent’s property by the executors was not income of the estate “paid or credited” to beneficiaries within the meaning of § 162(c), 26 U.S.C.A. Int.Rev. Code, § 162(c). Decedent’s will expressly forbade such a result since it provided that “all realized appreciation in the value of stock * * *, resulting from the sale * * * thereof, shall be considered principal and not income * * Likewise, under the New York decisions, such a gain is regarded as an addition to the corpus of the estate; Bank of Richmondville v. Graves, 259 App.Div. 4, 18 N.Y.S.2d 133, affirmed 284 N.Y. 671, 30 N.E.2d 720. In the accounts filed by the executors with the Surrogates they showed these gains as part of the “principal.” In Weber v. Commissioner, 2 Cir., 111 F.2d 766, the terms of the will were such that the gains upon the making of the sale became at once a profit of the legatees; obviously it therefore immediately became income so far as they were concerned; that casé is therefore not in point, and any language in that opinion possibly indicating a conclusion different from that we have reached here should be regarded as dictum. We think that Helvering v. Butterworth, 290 U.S. 365, 54 S. Ct. 221, 78 L.Ed. 365, is not at variance with the Tax Court’s decision here; the Supreme Court there dealt not with the distribution of any portion of the estate but with an annuity, which it held not to be deductible as income distributed to a beneficiary.
  3. Before the railway stock was sold by the executors, they had held it for about a year and a half. ' After the sale, the executors held the installment notes for a period of about ten months! If those ten months be properly added to the year and a half, then for the purpose of computing income under § 117(a), 26 U.S.C.A. Int. Rev.Acts, page 873, there was a holding for more than two years and less than five, with the consequence that 60% of the gain should be taken into account in computing income. § 44(d), relating to gain or loss upon the disposition of installment obligations, provides that “any gain * * * resulting shall be considered as resulting from the sale * * * of the property in respect of which the installment obligation was received.” The purpose of that provision is shown by the Congressional Committee Reports which read in part as fol-
  lows: “This amendment to the House bill makes it clear that where the profit on the sale or exchange of property is returned on the installment basis by spreading the profit over the period during which the installment obligations are satisfied or disposed of, such profit shall be taken into account under the brackets set forth in section 117 of the bill according to the period for which the original property sold was held rather than according to the period for which the installment obligations were held.” In the light of that statement, we agree with the Tax Court that the perio'd of holding here was for less than two years, and that, accordingly, 80% of the gain must be taken into account in computing income under § 117(a).
  Affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.