Commissioner v. Tellier Page 3

Commissioner v. Tellier general information

Media for Commissioner v. Tellier

Audio Transcription for Oral Argument - January 27, 1966 in Commissioner v. Tellier

Abe Fortas:

Well, that's not unlawful, is it?

Jack S. Levin:

No sir, it's not unlawful at all.

Abe Fortas:

Particularly if go up.

Jack S. Levin:

It's -- it's not unlawful at all.

The indictment involved for issuances of debentures by an Alaska telephone corporation.

There was also a New York State injunction proceeding which is reported at 155 New York Supp. 2d 245 involving another issue of securities in which the respondent was enjoined from selling securities in the State of New York for five years.

That was not a criminal but rather a civil proceeding.

Byron R. White:

Well, do you draw a distinction between his attorney's fees in resisting a -- an injunction suit and attorney's fees for defending a criminal prosecution?

Jack S. Levin:

Yes.

Byron R. White:

On the same -- the identical transaction.

Jack S. Levin:

That's correct.

The Commissioner believes --

Byron R. White:

And you and also between his attorney's fees -- how about his attorney's fees he pays for setting the transaction out?

Jack S. Levin:

The Commissioner has at least 40 years, consistently taken the position that three types of expenditures are encompassed by the public policy doctrine.

First, expenditures which are themselves illegal such as bribes, second, criminal fines and penalties assessed by courts in punishment for criminal acts, and third the attorney's fees incurred in resisting a criminal prosecution which results in the taxpayer's conviction.t

Abe Fortas:

Now on page 5 of the Government's brief, it is that third category that the Solicitor General does not endorse, is that a correct statement?

Jack S. Levin:

That's correct, Your Honor.

The Solicitor General has doubts as to whether the public policy doctrine should be extended to that third category.

The Solicitor General has expressed no doubts and in fact has endorsed the application of the public policy doctrine to the first two types of expenses.

For at least --

Earl Warren:

Those first two types are established here, does that decide the case?

Jack S. Levin:

No.

Earl Warren:

You have to have the third?

Jack S. Levin:

That's correct.

This case involves solely attorney's fees involved and incurred in resisting the criminal conviction.

This does not involve either one of the first two categories of expenses, this case does not --

Earl Warren:

Well, is it fair to say that the Solicitor General does not believe that he should sustain the third?

Jack S. Levin:

The Solicitor General has expressed serious doubts as to whether the public policy doctrine does in fact extend to the third.

He set forth on the brief at length his reasoning which leads him to conclude that he acknowledges serious doubt that such an overriding policy in favor of disallowance exist with respect to attorney's fees in this sort of a case.

Earl Warren:

In this sort of a case.