Commissioner of Internal Revenue v. Estate of Bosch/Dissent Fortas

Mr. Justice FORTAS, dissenting.

While I join the dissenting opinion of my Brother HARLAN, I believe it appropriate to add these few comments. As my Brother HARLAN states, in a case in which federal tax consequences depend upon state property interests, a federal court should accept the final conclusion of a competent state court, assuming that such a conclusion is an adjudication of substance arrived at after adversary litigation and on the basis of the same careful consideration that state courts normally accord cases involving the determination of state property interests. The touchstone of whether the state proceeding was 'adversary' is not alone entirely satisfactory. I think that this concept has been helpfully embellished by Judge Raum of the United States Tax Court in the Bosch case, 43 T.C. 120, 123-124. Judge Raum suggests that among the factors to be considered in determining whether the decision of the state court is to be accepted as final for federal tax purposes are the following: whether the state court had jurisdiction, and whether its determination is fully binding on the parties; whether, in practice, the decisions of the state court have precedential value throughout the State; whether the Commissioner was aware of the state proceedings and had an opportunity to participate; whether the state court 'rendered a reasoned opinion and reached a 'deliberate conclusion', Blair v. Commissioner, 300 U.S. (5) at p. 10 (57 S.Ct. 330, 81 L.Ed. 465)'; whether the state decision has potentially offsetting tax consequences in respect of the state court litigant's federal taxes; and, in general, whether the state court decision 'authoritatively determined' future property rights, and thus, as Judge Raum stated, 'provided more than a label for past events * *  * .'