The opinion of the court was delivered by: FORMAN
The Roebling Securities Corporation, a New Jersey corporation in dissolution, has moved for summary judgment pursuant to Rule 56, F.R.C.P. in this action brought under 28 U.S.C. §§ 1340 and 1346(a)(1) (1952 ed.) to recover taxes and interest of $ 190,404.11 and $ 21,420.46 respectively, assessed and collected by the Government for the calendar year 1954.
The Government moves 'for partial summary judgment * * * concerning the matters set forth in paragraphs 7 through 12 of the Amended Complaint * * *.'
and for an order directing Roebling to produce:
'1. All correspondence had between [Roebling] and Curzen Dobell pertaining to the sale by [Roebling] on January 21, 1955 to Curzon (sic) Dobell of all its claims against Preload Inc., and all of the Preload Inc. stock which it owned, for an aggregate price of $ 200,000.
'2. All documents and records pertaining to the sale transactions set out in the preceding paragraph.'
Roebling's motion will be considered first. It involves only one phase of the case which if decided in Roebling's favor would dispose of the entire suit.
The following pertinent facts inter alia have been stipulated:
2. On December 8, 1952, plaintiff entered into two agreements: one with the Colorado Fuel & Iron Corporation, (hereafter referred to as CF&I), and the other with the latter's subsidiary, the Colorado Steel Corporation, (hereafter referred to as Steel).
3. The agreement with Steel was for the sale of plaintiff's operating assets for $ 23,000,000, subject to certain adjustments
and the assumption of certain of plaintiff's liabilities.
4. In the agreement with CF&I, plaintiff agreed to purchase from it 200,000 shares of 5 1/2% cumulative preferred stock, which constituted the entire Series B issue, for $ 10,000,000.
5. Each agreement was expressly conditioned upon the simultaneous consummation of the other and each provided that if, for any reason, the other was not consummated the obligations of each party therein would cease and determine without liability on the part of either party to the other.
6. These agreements were consummated simultaneously at a closing held on December 31, 1952, which occurred in the following steps:
(a) Steel paid plaintiff $ 10,000,000.
(b) Plaintiff paid $ 10,000,000 to CF&I for the issuance to it of the 200,000 shares of ...