John W. Banks, III - Page 18




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          order states clearly:  “Plaintiff seeks only reinstatement, back            
          pay, and attorneys’ fees” and “Plaintiff has abandoned all claims           
          for damage relative to state tort claims, including a claim for             
          intentional and negligent imposition of emotional distress,                 
          tortious interference with business relations, and defamation.”             
          Because petitioner was not seeking personal injury damages at the           
          time of settlement, we hold for respondent on this issue.  None             
          of the settlement proceeds are excludable under section                     
          104(a)(2).                                                                  
               Petitioner also contends that $150,000 of the proceeds that            
          he paid to his attorney as a contingent fee is excludable from              
          his gross income under Cotnam v. Commissioner, 263 F.2d 119 (5th            
          Cir. 1959), revg. in part and affg. in part 28 T.C. 947                     
          (1957)(Cotnam), and its progeny.  Cotnam excluded from a                    
          taxpayer’s gross income the portion of a damage award paid to the           
          taxpayer’s attorney under a contingent fee arrangement.                     
               We disagree that the holding of the Court of Appeals in                
          Cotnam or its progeny control this case.  In Kenseth v.                     
          Commissioner, 114 T.C. 399, 412 (2000), we reconsidered our view            
          of the Cotnam holding in light of the views as to that holding              
          expressed by various Courts of Appeals, including the Court of              
          Appeals for the Sixth Circuit Court of Appeals in Estate of                 
          Clarks ex rel. Brisco-Whitter v. United States, 202 F.3d 854 (6th           
          Cir. 2000).  We concluded in Kenseth v. Commissioner, supra at              






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