- 53 -
years that the income would have been received but for the
breach, section 1305 of the 1954 Code. One of the grounds
advanced by the Court in Estate of Gadlow for refusing to follow
the Court of Appeals for the Fifth Circuit in Cotnam was that the
applicable Pennsylvania law did not contain the Alabama
provision.25
The Court’s opinion in Estate of Gadlow summarized and
quoted O’Brien v. Commissioner, supra, and concluded that the
spread back provisions under review:
did not make provision for spreading back related
expenses incurred in the collection of back pay. We
concluded [in O’Brien] that without specific statutory
authority this Court could not allow this treatment.
We reach the same conclusion here. [Estate of Gadlow
v. Commissioner, supra at 981.]
In the case at hand there is no analogous question of
statutory interpretation of a relief provision, only the
application of the Federal common law of taxation26 to determine
25 Estate of Gadlow v. Commissioner, 50 T.C. 975, 980
(1968), is also distinguishable from Cotnam v. Commissioner, 25
T.C. 947 (1957), affd. in part and revd. in part 263 F.2d 119
(5th Cir. 1959), on another ground, not present in the case at
hand:
because Gadlow did not employ the attorneys on a
contingent-fee basis as Mrs. Cotnam did, but rather,
their fee was fixed solely by the number of hours they
worked on Gadlow’s case. Therefore, the fee was
Gadlow’s debt due and owing from Gadlow to his
attorneys without regard to the outcome of the
litigation.
26 See supra note 20.
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