opinion: ACME LAND & FUR CO., Inc., v. COMMISSIONER OF INTERNAL REVENUE.
  No. 8020.
  Circuit Court of Appeals, Fifth Circuit.
  June 10, 1936.
  John J. Finnorn, of New Orleans, La., for petitioner.
  Robert H. Jackson, Asst. Atty. Gen., Harry Marselli, Sewall Key, and Norman D. Keller, Sp. Assts. to Atty. Gen., and Herman Oliphant, Gen. Counsel, Department of Treasury, and De Witt M. Evans, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.
  Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
  HUTCHESON, Circuit Judge.
  The sole question this petition presents for review is whether moneys, paid petitioner out of amounts raised by the inhabitants of the city of New Orleans to reimburse owners of crevasse property for losses from the destruction of wild life thereon, were income subject to taxation.
  Petitioner insists that it was not, because (1) the payment was not gain derived from capital or labor, or gain from both capital and labor, or gain through the sale or conversion of capital, but a mere gratuity or gift and therefore not income within the meaning of the statute. (2) It was tax-exempt because paid to it by the state.
  The Board, in a carefully considered opinion, examining and rejecting these contentions, 31 B.T.A. 582, has set out clearly and fully the facts which give rise to the question. 'We need only say that the levee was broken and the crevasse was made because it seemed necessary to do so to prevent the city of New Orleans from becoming inundated, and that its making was authorized after and upon the understanding that provision would be made by the inhabitants of that city to compensate those injured for their benefit by its making. Under a constitutional amendment authorizing bonds to be issued payable by and chárgeable against the property of the citizens of New Orleans, funds were realized out of which the state of Louisiana, as intermediary, caused the sums in question to be paid to petitioner. The first thing to be noted here is that the state of Louisiana has not, and never has had, a direct financial concern in the matter. It has acted throughout as intermediary to see that justice was done by the citizens of New Orleans benefited by the crevasse, and therefore justly obligated to owners of crevasse property injured by it.
  The second point to be noted is that though if the constitutional amendment had not carried, and the bonds had not been issued, petitioner might not have been able to compel payment, there was a definite, a clear understanding between the crevasse owners and the citizens of New Orleans carrying an obligation, if not a legal one, certainly one sounding in justice and equity, that their losses should be repaid by those for whose sake they had been borne. Whatever the legal status of this promise before it was carried out, after it was and the money had become available to petitioner, it was received by it in no sense as a gift or gratuity, but as the discharge of a valid, if unenforceable, obligation arising out of the situation and its recognition by agreement, and is to be accounted for like any 'other gain through the sale or conversion of capital would be. United States v. Realty Co., 163 U.S. 427, 16 S.Ct. 1120, 41 L.Ed. 215; City of Houston v. Stewart, 99 Tex. 67, 87 S.W. 663, 665. In the last-cited case the Supreme Court of Texas held that refunding certificates, issued by all the citizens of Houston to repay some who had been compelled to bear the whole cost of paving under a plan afterwards abandoned, were just and enforceable obligations. It said: “It was within the power of the Legislature to authorize the city to make an equitable adjustment of these matters so as to equalize the burden upon the property of its citizens.” Cf. Marine Transportation Co. v. Commissioner (C.C.A.) 77 F.(2d) 177; Flynn v. Commissioner (C.C.A.) 77 F.(2d) 180; Texas & P. R. R. Co. v. United States, 286 U.S. 285, 52 S.Ct. 528, 76 L.Ed. 1108.
  Not a single element requisite in a gift was present. Every element of a quid pro quo was. Not only is there present the almost irrebutable presumption that a state would not make a gift of public moneys to a private corporation, but every fact here negatives both that intention and that result.
  There is no substance either, in the other point, that the payment was tax-exempt because made to petitioner by the state. The tax upon these moneys was in no sense a levy upon “instrumentalities, means or operations whereby the State exerts the governmental powers belonging to it.” The imposition of the tax will not, it cannot, in any way burden the state. The amounts were paid by the citizens of New Orleans under an agreement they made. They are certainly no more tax-exempt than amounts paid in or as the result of condemnation proceedings. It is well settled that these are not exempt where the taxpayer, under the special statute applicable to them, does not use them to purchase other similar property to take the place of that sold. Fullilove v. United States (C.C. A.) 71 F.(2d) 852.
  The order of the Board is 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.