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(1930); see United States v. Allen, 551 F.2d 208 (8th Cir. 1977)
(taxpayer, a real estate broker, was taxed on commission earned
on sale of house to his parents; commission turned over to his
parents; taxpayer argued that he had agreed to sell the house to
his parents free of a commission and, therefore, had waived the
commission); Daugherty v. Commissioner, 63 F.2d 77 (9th Cir.
1933), affg. 24 B.T.A. 531 (1931) (attorney who assigned to his
wife one-half of his share of a contingency fee is taxable on the
full share); Kochansky v. Commissioner, T.C. Memo. 1994-160
(attorney who represented client in malpractice suit taxable on
contingent fee assigned to former wife in property settlement
agreement). When income is assigned to another: "The choice of
the proper taxpayer revolves around the question of which person
* * * in fact controls the earning of the income rather than the
question of who ultimately receives the income." Vercio v.
Commissioner, 73 T.C. 1246, 1253 (1980); Vnuk v. Commissioner,
621 F.2d 1318, 1320 (8th Cir. 1980), affg. T.C. Memo. 1979-164;
Kochansky v. Commissioner, supra.
Neither party here argues that the $408,318 item here in
question is taxable to the Lipsig firm. The choice is between
petitioner, for whom, if the item is his, it is a fee includable
in gross income pursuant to section 61(a)(1), and Hester, for
whom, if it is hers, it is an amount excludable from gross income
pursuant to section 104(a)(2) as an amount received on account of
personal injury. The evidence here strongly supports the
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