- 59 -
This is the narrow holding of the Court of Appeals’ decision
in Cotnam, discussed below in subpart i.34
There then followed a statement of the broader ground of the
panel’s decision, introduced by the following statement: “Judges
RIVES and BROWN add to the foregoing, the following”, 263 F.2d at
125, and concluding: “Accordingly, the attorneys’ fee of
$50,365.83 should not have been included in the taxpayer’s gross
income”, 263 F.2d at 126. Then came the dissenting opinion of
Judge Wisdom, who had written the opinion for the panel embodying
the narrow holding.35 The disagreement between the additional
34 Although the Tax Court noted that the attorneys “only had
a lien on the fund” payable to Mrs. Cotnam and that the attorneys
“had no right in or title to” Mrs. Cotnam’s recovery sufficient
to justify treating them as the owners for tax purposes of any
portion of that recovery, it is not clear that the peculiar
provisions of Alabama law that provided the narrow holding of the
Court of Appeals decision were brought to the attention of the
Tax Court. See Cotnam v. Commissioner, 28 T.C. 947, 954 (1957),
affd. in part and revd. in part 263 F.2d 119 (5th Cir. 1959).
The Tax Court, in sustaining the Commissioner’s treatment of the
fee as a deduction, did not address the significance (or even
advert to the existence) of those provisions (discussed infra pp.
60-66).
35 Cotnam is a close-to-home example of a judge (Wisdom, J.)
writing both the majority opinion and a dissent. Although only
rarely does the judge who writes the majority opinion also write
separately in concurrence or dissent, it has happened in this
Court, Haserot v. Commissioner, 46 T.C. 864, 872-878 (1966)
(Tannenwald, J., “speaking separately”), affd. sub nom.
Commissioner v. Stickney, 399 F.2d 828 (6th Cir. 1968), and in
other courts, see, e.g. City of Baton Rouge v. Ross, 654 So.2d
1311, 1326 (La. 1995) (Calogero, C.J., concurring); Santa Clara
County Local Transp. Auth. v. Guardino, 902 P.2d 225, 256 (Cal.
1995) (Werdegar, J. dissenting); Dawkins v. Dawkins, 328 P.2d
346, 353 (Kan. 1958) (Jackson, J., concurring), no less than the
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