- 89 -
memorandum opinion--the taxpayer was pro se--provide no more than
a lick and a promise on this point. The taxpayer in Brewer was a
member of a class of hundreds (women who had been discriminated
against in the recruiting, hiring, and training of sales agents
by the State Farm insurance companies). I find it incredible
that those claimants were all required to gross up their
recoveries and then deduct their respective shares of the legal
fees. I doubt that any member of such a large class had a
scintilla of control over the conduct of the class action.
The majority opinion’s quotations from O’Brien v.
Commissioner, 38 T.C. at 710, particularly, “Although there may
be considerable equity to the taxpayer’s position, that is not
the way the statute is written” (majority op. p. 21), ignore that
O’Brien and its antecedents and descendants were construing
statutory spreadback provisions, not applying the assignment of
income doctrine under section 22 of the 1939 Code, section 61 of
the 1954 or 1986 Code, or the 16th Amendment.
9. Preventing Tax Avoidance by Other Transferors
The majority state at page 14: “We perceive dangers in the
ad hoc modification of established tax law principles or
doctrines to counteract hardship in specific cases, and,
accordingly, we have not acquiesced in such approaches”.
Although the majority opinion does not spell out those dangers,
concerns have been expressed that adoption of my findings and
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