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Rudkin Testamentary Trust - A Response to Prof. Cohen

5 Pages Posted: 26 Sep 2009 Last revised: 15 Nov 2009

Douglas A. Kahn

University of Michigan Law School

Date Written: September 21, 2009


In the August 3 issue of Tax Notes, 1 Professor Stephen Cohen wrote an article about Justice Sonia Sotomayor’s opinions in three tax cases. Of those three cases, only the opinion she wrote in William L. Rudkin Testamentary Trust v. Commissioner is worthy of comment. Although the Second Circuit’s decision in that case was affirmed by the Supreme Court under the name Knight v. Commissioner, the construction of the critical statutory language that Justice Sotomayor adopted was rejected and criticized by Chief Justice Roberts, writing for a unanimous court. Cohen concluded that Justice Sotomayor’s construction of the statutory language is ‘‘at least as valid as, and probably preferable to, the construction adopted by the Supreme Court’’ and that Chief Justice Roberts’s criticism of Justice Sotomayor’s rationale is ‘‘logically flawed.’’ Cohen also said that Chief Justice Roberts’s criticism of Justice Sotomayor’s opinion is ‘‘unpersuasive and overstated.’’ In my view, the construction adopted by Justice Sotomayor was incorrect, and Chief Justice Roberts’s criticism was persuasive and accurately stated. Moreover, based on policy considerations, a plausible case can be made that the courts could have construed the statute differently, resulting in a decision for the taxpayer.

Keywords: Sotomayor, tax, Rudkin, Knight, Roberts, 67(e), trust investment fees

JEL Classification: H20, H24, H29

Suggested Citation

Kahn, Douglas A., Rudkin Testamentary Trust - A Response to Prof. Cohen (September 21, 2009). Tax Notes, Vol. 124, No. 12, 2009; U of Michigan Public Law Working Paper No. 169. Available at SSRN:

Douglas A. Kahn (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-647-4043 (Phone)

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