Smith v. Commissioner

Opper, /., concurring: I agree that on the first point this proceeding is indistinguishable from the Keeble case, which I see no compelling reason for overruling now. But I do not think the result is otherwise supportable. Not only does it require that we eliminate the word “calendar” from the statute, an amendment I think beyond our province under the familiar rule that words employed in legislation are not lightly to be taken as meaningless, but the prevailing view also overlooks what seems to me a fairly evident purpose in the use of that word, that is, an intention to make it consistent with the normal taxable year, which, especially in the case of individuals, is likely to be the calendar year. See Internal Revenue Code, sec. 48. Thus, a taxpayer who comes squarely within the statutory definition with services extending over “a period of” exactly “five calendar years,” for example, would be at a tax disadvantage compared with another whose services covering a period of similar length fell into six taxable .years and thus permitted allocation to each of the years included in “such period,” or a division of the compensation into six parts instead of five.