From: Jeffrey Epstein [email protected]> To: "Dr. Henry Jarecki" Subject: Re: Date: Sat, 12 Sep 2009 19:40:16 +0000 your call„ its just funny On Sat, Sep 12, 2009 at 3:16 PM, Dr. Henry Jarecki wrote: should I pass this to wilens? From: Jeffrey Epstein [mailto:jeevacationagmail.com Sent: Saturday, September 12, 09 15:00 To: Dr. Henry Jarecki Subject: I am troubled, however, by the path the majority takes to reach this result, and thus concur only in the court's judgment with respect to the reversal of Harris' conviction. I part company with the majority when it distills from our gift/income jurisprudence a rule that would tax only the most base type of cash-for-sex exchange and categorically exempt from tax liability all other transfers of money and property to so-called mistresses or companions. After citing several decisions of the tax court, the majority concludes that a person "is entitled to treat cash and property received from a lover as gifts, as long as the relationship consists of something more than specific payments for specific sessions of sex." Ante at 1133-1134. I respectfully disagree. In Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960), the font of our analysis of the gift/income distinction, the Supreme Court expressly eschewed the type of categorical, rule-bound analysis propounded by the majority. See id. at 289, 80 S.Ct. at 1198 ("while the principles urged by the Government may, in nonabsolute form as crystallizations of experience, prove persuasive to the trier of facts in a particular case, neither they, nor any more detailed statement than has been made, can be laid down as a matter of law"). The Court counseled instead that in distinguishing gifts from income we should engage in a case-by-case analysis, the touchstone of which is "the 'transferor's intention.'" Id. at 285-86, 80 S.Ct. at 1197 (quoting Bogardus v. Commissioner, 302 U.S. 34, 43, 58 S.Ct. 61, 65, 82 L.Ed. 32 (1937)).