# Focht v. Commissioner

> United States Tax Court · May 24, 1977 · 68 T.C. 223

URL: https://www.frixlaw.com/law-library/cases/4483303

## Case

- **Full name:** Donald D. Focht v. Commissioner of Internal Revenue
- **Court:** United States Tax Court
- **Decided:** May 24, 1977
- **Citations:** 68 T.C. 223; 1977 U.S. Tax Ct. LEXIS 105
- **Precedential status:** Published
- **Opinion:** Concurrence by Simpson
- **Judges:** Sterrett,Raum,Simpson,Wilbur,Tannenwald,Hall
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4483303

## Opinion text

Simpson, J., concurring: I should like to begin by borrowing the words of Mr. Justice Frankfurter who once said: "Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters Bank, 335 U.S. 595, 600 (1949). When I wrote the opinion in Thatcher, I fully appreciated the consequences of adopting a literal interpretation of section 357(c), but I felt compelled to reach such result. To adjudicate that controversy, we were required to decide whether, when the term "liability” was used in section 357(c), Congress intended for it to have a literal or more restrictive meaning. I consider that our ultimate responsibility is to find out what Congress had in mind when it used the term and to apply such meaning in deciding the case. Of course, I carefully considered the interpretations suggested by the parties in the Thatcher case, those suggested by my colleagues, those adopted by other courts, and those suggested by the writers, but although some of them appeared to provide a satisfactory answer to one set of facts, none of them seemed to be supported by history and to provide a rational application of the provision.
Subsequently, I was very interested in the article "A Definition of 'Liabilities’ in Internal Revenue Code Sections 357 and 358(d)” by Kahn and Oesterle in the Michigan Law Review ( 73 Mich. L. Rev. 461 (1975)). The approach suggested by them appeared to be consistent with the history of the provisions now contained in sections 357 and 358, and it produces results which are rational and which one may conclude were intended by the Congress. I was happy to see that when this case came before Judge Sterrett for decision, he decided to embrace that approach, and I am now glad to join with him in this decision.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4483303. Public record. Not legal advice.