- 51 - respectively attributable.” There is no provision whatever for spreading back any related expenses as was done in petitioner’s returns. Judge Raum saw the situation as identical with that in Smith v. Commissioner, 17 T.C. at 144, quoting what the Court said in that case in upholding the taxpayer’s claim of entitlement to the deduction in the year of receipt, notwithstanding that the Commissioner had computed his tax liability by spreading the back pay award over the years of service: Without this section, the entire $212,000 would be income in 1945. Section 107 is silent as to expenses incurred in connection with any collection of back pay, and there are no regulations or decisions which we have been able to find on the question. To limit application of section 107 to amounts received less expenses connected with collection is not a function for the Court, but rather is a task for Congress if that is the result which they wish. We therefore hold that petitioner is entitled to deduct the $25,000 legal expense in 1945. Judge Raum then discussed the opinions of the Tax Court and the Court of Appeals for the Fifth Circuit in Cotnam v. Commissioner, supra, concluding: “In reaching that conclusion the majority [in the Fifth Circuit] placed considerable stress upon certain provisions of an Alabama statute relating to attorney’s liens.”24 O’Brien v. Commissioner, supra at 712. 24 It’s also noteworthy that the final paragraph of Judge Wisdom’s dissent in Cotnam v. Commissioner, 263 F.2d 119, 127 (5th Cir. 1959), revg. 28 T.C. 947 (1957), like the opinion of Judge Turner in the Tax Court, and the Tax Court’s prior opinion in Smith v. Commissioner, 17 T.C. 135 (1951), revd. on another issue 203 F.2d 310 (2d Cir. 1953), relied upon the lack in sec. (continued...)Page: Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 Next
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