Eldon R. Kenseth and Susan M. Kenseth - Page 53

                                        - 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                        
              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                
               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                           
               26 See supra note 20.                                                    

Page:  Previous  43  44  45  46  47  48  49  50  51  52  53  54  55  56  57  58  59  60  61  62  Next

Last modified: May 25, 2011