relied on by amicus curiae
How later courts described this case
- relied on by amicus curiae
Written by the judges who cited it.
The opinion
Dawson, /., concurring: In section 1033 Congress has expressed its view that an involuntary conversion (a fortuitous event) should not be a taxable event unless the taxpayer so elects. It seems contrary to the spirit of section 1033 that an involuntary conversion together with an untimely death (another fortuitous event) should provide an occasion for tax where, as here, the decedent’s intention to replace is so clear. Neither the involuntary conversion nor the death, alone, would have provided the occasion for an income tax.
Thus I suspect that in the Goodman case the Court of Appeals for the Third Circuit was motivated more by a “fair reading” of the statute than the passive voice in which it was phrased. Its holding was: “A construction more logical and more consonant with the purpose of the statute is that it means the taxpayer or one acting on his behalf, before or after death. [199 F.2d at 898.]” I agree with the majority opinion that the change to the active voice suggests no change in substance.
The election under section 1033 is made on the taxpayer’s return for the year of conversion. Sec. 1.1033 (a)-2(c) (2), Income Tax Kegs. Obviously a decedent cannot make the election (even if he has completed replacement before his death). Here, the decedent’s executors. acting on his hehdlf, filed his final return and made the election. The proceeds were transferred to the testamentary trustees for actual replacement. The executors and the trustees were the same persons, the decedent’s sons.
We would reach a highly technical result in this case if, considering the decedent’s steps toward replacement and the election 'by his executors, we were to impose a tax because it was more convenient for the decedent’s sons to complete replacement in their capacity as trustees rather than as executors. I view the trustees as merely carrying out the mandate of the executors and the Orphans’ Court.
While there is a probability the capital gain may go untaxed, that is the result of section 1014 rather than section 1033. And, in any event, this is precisely what would have happened if the decedent had made the replacement before he died.
Dkennen-, Fat, Hott, and Simpson, //., agree with this concurring opinion.