Douglas A. Kahn's Letter to Tax Notes Editor: Position Mistated; Disagree with Cohen's Interpretation of Section 67(e)

Douglas A. Kahn, Paul A. Kauper Professor of Law at the University of Michigan Law School, submitted a letter to the editor of Tax Notes in response to a recent article (previously discussed in this journal) by Professor Stephen B. Cohen in regards to Supreme Court Chief Justice John Roberts's criticism in Knight v. Commissioner of Supreme Court Justice (but, at the time, Judge, on the U.S. Court of Appeals, Second Circuit) Sonia Sotomayor's opinion in Rudkin Testamentary Trust v. Commissioner, and its construction of Section 67(e).  Kahn claims that Cohen has stated incorrectly that Kahn has written that the word "costs" should be construed to possess a technical meaning instead of a "common parlance meaning."  He further argues that even if "costs" were given the meaning Cohen attributes to it, "the provision in question did not establish what (Cohen) claimed for it."

Kahn also asserts that Cohen "laments the administrative difficulty" of Section 67(e)'s requirement to determine whether someone other than a trust or estate, if that person held the property, would have incurred a particular expense.  He asserts Cohen believes that Judge Sotomayor's interpretation of Section 67(e) is superior to the Supreme Court's interpretation, but that regardless of Cohen's opinion, Judge Sotomayor's ruling was not "statutory interpretation," but instead was "statutory revision."



Posted by Neil I. Rumbak, Associate Editor, Wealth Strategies Journal.