| ||Crane’s Ghost Still Spooks Tax Law: Cf. Owen|
Alvin D. Lurie*
* President, Alvin D. Lurie, P.C., New Rochelle, N.Y., concentrating in employee benefits and executive compensation. Chairman, NYSBA Special Committee on Pension Simplification. Cornell University, B.A., LL.B. Co-editor-in-chief, Cornell Law Quarterly.
1 Owen v. United States, 34 F. Supp. 2d 1071, 1078 (W.D. Tenn. 1999) (denying reconsideration). A pair of dueling pieces in Tax Notes by two professors typifies the journalistic "furor." See Deborah A. Geier, And the 1999 Award for the Worst Opinion in a Tax Case Goes to…, 83 Tax Notes (TA) 1642 (June 14, 1999); Susan Kalinka, In Defense of Owen and the Supporting Cast, 84 Tax Notes (TA) 166 (July 5, 1999); see also Susan Kalinka, Owen v. United States: Crane v. Cash Method of Accounting, 83 Tax Notes (TA) 1231 (May 24, 1999) (discussing Owen and its departure from Crane, but more for its bearing on the cash method of accounting as informed by the policy concerns of Crane); Burgess J.W. Raby & William L. Raby, ‘Paid’ and the Cash-Basis Taxpayer, 83 Tax Notes 875 (May 10, 1999).
2 For samples of author’s early, published musings, see Note, Mortagor’s Gain on Mortgaging Property for More Than Cost Without Personal Liability ( Contentions of Taxpayer’s Counsel in a Pending Case), 6 Tax L. Rev. 319 (1951), and Taxing Transfers of Mortgaged Property, 39 Cornell L. Q. 611 (1954). The literature on Crane and its progeny is legion, but the following references are recommended. See Boris I. Bittker, Tax Shelters, Nonrecourse Debt, and the Crane Case, 33 Tax L. Rec. 227 (1978); A.L. Suwalsky, Disposition of Devaluated Investments—Tufts v. Commissioner and Footnote 37, Tax Mgmt. Mem. (BNA) 82-2 (1982) (including authorities collected in note 3); Joel E. Miller, The Supreme Court Does it Again in Tufts: Right Answer, Wrong Reason, 11 J. of Real Est. Tax. 3 (1983); Alvin D. Lurie, New Ghosts for Old—Crane Footnote 37 Is Dead (Or Is It?), 2 Amer. J. Tax Pol. 89 (1983) (whose kinship with this paper is undeniable); Alice Cunningham, Payment of Debt with Property—The Two-Step Analysis after Commissioner v. Tufts, 38 Tax Law. 575 (1985).
3 Crane v. Commissioner, 331 U.S. 1 (1947)
4 Geier, supra note 1
5 See Alvin D. Lurie, I know Crane and BOSS Isn’t Crane, 86 Tax Notes (TA)___, (March 27, 2000).