Julius Garfinckel & Co., Incorporated (Successor to Brooks Brothers, Inc., Formerly the A. Depinna Company) v. Commissioner of Internal Revenue

FRIENDLY, Circuit Judge:

This petition to review a decision of the Tax Court denying a net operating loss carry-over under § 122 of the Internal Revenue Code of 1939 requires us to decide a difficult question as to the effect of Libson Shops Inc. v. Koehler, 353 U.S. 382, 77 S.Ct. 990, 1 L.Ed.2d 924 (1957), which we were able to avoid last term in Norden-Ketay Corp. v. C. I. R., 319 F.2d 902 (2 Cir.), cert. denied, 375 U.S. 953, 84 S.Ct. 444, 11 L.Ed.2d 313 (1963). The question, in substance, is this: When a corporation which has incurred losses but is still actively engaged in business…