Eldon R. Kenseth and Susan M. Kenseth - Page 32

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         interest coupons; taxpayer remains taxable on the income that he               
         would have received but for the transfer).  The Supreme Court                  
         made clear that these results were based on the Court’s reading                
         of the statute as to what was income of the taxpayer rather than               
         income of another; the intended result was to tax the taxpayer on              
         the income the taxpayer would have had if he or she had acted to               
         “earn” the income but had not acted to deflect the income.                     
              Those seminal cases did not present disputes about the                    
         amount of the income, but they focused on whether the taxpayer                 
         had succeeded in deflecting the taxation of it to others.                      
              As the majority opinion notes, there is later case law                    
         dealing with how to measure the amount of the income.  This case               
         law is, in part, responding to needs to interpret and apply                    
         intricate “spread-back” provisions and, in part, to fill in the                
         gaps in statutory text that become evident when a statute has to               
         be applied to the real world.  The concepts developed by the                   
         courts seemed to be reasonable and seemed to produce reasonable                
         results.  However, the statutory background has changed over the               
         decades.  For example the Congress repealed more than 30 years                 
         ago the statute referred to in the majority opinion’s quotation                
         (majority op. p. 21) from O’Brien v. Commissioner, 38 T.C. 707,                
         710 (1962), affd. 319 F.2d 532 (3d Cir. 1963).  Application of                 
         court-made rules to the new background has exposed analytical                  
         errors that were originally overlooked because the harm created                

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