
    ENTERPRISE COAL CO. v. PHILLIPS.
    No. 6006.
    Circuit Court of Appeals, Third Circuit.
    June 15, 1936.
    Wm. J. Fitzgerald, of Scranton, Pa. (Kelly, Balentine, Fitzgerald & Kelly, of Scranton, Pa., of counsel), for appellant.
    Robert H. Jackson, Asst. Atty. Gen., Sewall Key and Julian G. Gibbs, Sp. Assts. to the Atty. Gen. (Frederick V. Follmer, U. S. Atty., of Scranton, Pa., of counsel), for appellee.
    Before BUFFINGTON, Circuit Judge, and DICKINSON and FORMAN, District Judges.
   PER CURIAM.

In the court below the Enterprise Coal Company brought suit against the collector of internal revenue to recover taxes which it alleged were illegally collected from it. By written stipulation, trial by jury was waived and the case tried by the judge, who found for the collector, and from a judgment entered against the defendant this appeal was taken.

As we view the case before the trial judge, the issues involved questions of fact. In that regard the trial judge summarized them as follows: “The taxpayer sought to deduct from its income for the year 1923 the following items: Operating expenses $115,887.65; Loss on abandonment $101,157.47; Depletion of culm bank $93,257.10. The disallowance of these deductions by the Commissioner of Internal Revenue resulted in the tax in question and the Commissioner’s action is made the basis of this suit.” And added: “The plaintiff bases its case upon the testimony of its two witnesses, Heinbokel and Jennings, and some documentary evidence. The issues involved are largely questions of fact depending upon this evidence.”

Under the principles stated by the Supreme Court in Eastman Kodak Co. v. Gray, 292 U.S. 332, 54 S.Ct. 722, 78 L.Ed. 1291, when trial by jury is waived, this court has no jurisdiction to review findings of fact where there was evidence from which such findings of fact could be made. Regarding the case as simply involving fact findings by the trial tribunal which are conclusive upon this court, the judgment below is affirmed.  