Eldon R. Kenseth and Susan M. Kenseth - Page 47

                                        - 47 -                                          
         case-by-case basis.  As Justice Douglas spoke for the Court in                 
         Helvering v. Clifford, 309 U.S. 331, 338 (1940), responding to                 
         the taxpayer’s argument that the then current statutory revocable              
         trust rules did not by their terms apply to the short-term trust               
         arrangement under review:                                                      
              The failure of Congress to adopt any such rule of thumb                   
              for that type of trust must be taken to do no more than                   
              leave to the triers of facts the initial determination                    
              of whether or not on the facts of each case the grantor                   
              remains the owner for purposes of � 22(a).  [Emphasis                     
              What Justices Stone and Douglas said in Horst and Clifford                
         provides two reminders:  First, the Supreme Court regards the                  
         trial courts, including the Tax Court, as the proper arbiters of               
         the assignment of income doctrine; it’s the trial court’s job to               
         decide whether a taxpayer, who made an intrafamily or related                  
         party transfer or other transfer of rights to future income or of              
         income producing property, retained sufficient control over what               
         was transferred to justify taxing the transferor on the income,                
         rather than the transferee.  Second, the assignment of income                  
         doctrine is judge-made law, not a rule of statutory                            
         interpretation of the more recently enacted itemized deduction                 
         and AMT provisions.  Contrary to the claims of the majority and a              

          ABA/AICPA/TEI/release on 10 ways to simplify the tax code                     
          (including repealing AMT and phasing out phaseouts) Doc. 2000-                
          5573 Highlights & Documents (Feb. 28, 2000).                                  

Page:  Previous  37  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  54  55  56  Next

Last modified: May 25, 2011