Commissioner v. Duberstein Page 13

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Media for Commissioner v. Duberstein

Audio Transcription for Oral Argument - March 23, 1960 in Commissioner v. Duberstein

Philip Elman:

And even -- even where -- even where the gift again in quotation mark --

(Inaudible)

Philip Elman:

Pardon?

(Inaudible)

Philip Elman:

I don't -- I can't cite any cases but the treasury cases (Inaudible) to this and I think that under the rationale of Glenshaw it's income then it is certainly not a gift.

Potter Stewart:

It didn't tell the -- it didn't tell if it has lost it and comes around again.

Philip Elman:

If it's -- if it's kept under a claim of right and is unrestricted use in enjoyment, I take it the decision of this Court say it's income.

Now, this point that there is -- that there is nothing done by the recipient has -- has attributed -- contributed to a good deal of confusion in this area particularly in the Widows Bonus cases because there the widow has herself not rendered any services and the courts said, well she hasn't done anything, she's -- it's something for nothing as far as she is concerned.

And the courts I must confess have been -- have been seriously rather restraining this area by the rulings of the Commissioner himself who we think was responsible for this by initially making an erroneous ruling which the courts followed and then withdrawing it when it was too late.

Now, if the something for nothing test is -- is accepted, as I say, it would not only be in the face of everything -- of all the case law in this field which focuses on the situation from the donors our position, but it is also as a matter of analysis wrong because it confuses gifts and windfalls.

Thank you very much.