Eldon R. Kenseth and Susan M. Kenseth - Page 50

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         employment, etc., attributable to services rendered over a number              
         of years.  The statutory mechanism allowed the taxpayer to                     
         compute income tax for the year of receipt as if the back pay or               
         other compensation had been ratably received during the years                  
         earned.  The theme of those cases, without regard to assignment                
         of income principles, was this Court’s unwillingness to provide                
         relief beyond the express terms of what was felt to be a generous              
         statutory relief provision.                                                    
              In each of those cases, this Court treated the problem as                 
         one of statutory interpretation, before wrapping itself in the                 
         mantle of Lucas v. Earl, 281 U.S. 111 (1930), and the Supreme                  
         Court’s other landmark cases on assignment of income.  So said                 
         Judge Raum, speaking for the Court in O’Brien v. Commissioner, 38              
         T.C. at 710:23                                                                 
                    Although there may be considerable equity to the                    
              taxpayer’s position, that is not the way the statute is                   
              written.  Without the benefit of section 1303 [the 1954                   
              Code equivalent of 1939 Code section 107], there would                    
              be no relief whatever, and the relief granted cannot go                   
              beyond these very provisions.  They provide merely for                    
              a computation of tax based upon “the inclusion of the                     
              respective portions of such back pay in the gross                         
              income for the taxable years to which such portions are                   

               23 The taxpayer in O’Brien v. Commissioner, 38 T.C. 707                  
          (1962), affd. per curiam 319 F.2d 532 (3d Cir. 1963), had not                 
          claimed on his return that the fee should offset the recovery,                
          with the resulting reduced amount to be spread back.  The                     
          taxpayer had reported on his 1957 income tax return the receipt               
          of a backpay award, had spread back the gross amount of the award             
          over the years of service (1952-1955), and then had apportioned               
          and spread back the legal fees over the same years.  This, the                
          Court held, the statutory spreadback provision did not permit.                

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