Eldon R. Kenseth and Susan M. Kenseth - Page 22

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         Commissioner, 38 T.C. 137, 151-152 (1962) (Nebraska law and South              
         Dakota law); Sinyard v. Commissioner, T.C. Memo. 1998-364, on                  
         appeal (9th Cir., Oct. 15, 1999) (Arizona law); Srivastava v.                  
         Commissioner, T.C. Memo. 1998-362, on appeal (5th Cir., June 14,               
         1999) (Texas law); Coady v. Commissioner, T.C. Memo. 1998-291                  
         (Alaska law).                                                                  
              After further reflection on Cotnam and now Estate of Clarks               
         v. United States, supra, we continue to adhere to our holding in               
         O’Brien that contingent fee agreements, such as the one we                     
         consider here, come within the ambit of the assignment of income               
         doctrine and do not serve, for purposes of Federal taxation, to                
         exclude the fee from the assignor’s gross income.  We also                     
         decline to decide this case based on the possible effect of                    
         various States’ attorney’s lien statutes.6                                     

               6 With the exception of situations where, under our holding              
          in Golsen v. Commissioner, 54 T.C. 742, 756-757 (1970), affd. 445             
          F.2d 985 (10th Cir. 1971), we feel compelled to follow the                    
          holding of a Court of Appeals, we have consistently held that                 
          attorney’s fees are not subtracted from taxpayers’ gross income               
          to arrive at adjusted gross income.  In Davis v. Commissioner,                
          T.C. Memo. 1998-248, affd. per curiam ___ F.3d ___ (11th Cir.                 
          2000), we followed Cotnam v. Commissioner, 263 F.2d 119 (5th Cir.             
          1959), affg. in part and revg. in part 28 T.C. 947 (1957),                    
          because the appeal would lie to the Court of Appeals for the 11th             
          Circuit, which follows precedents of the Court of Appeals for the             
          5th Circuit for cases decided before Oct. 1, 1982.  In a per                  
          curiam opinion, the Court of Appeals for the 11th Circuit                     
          affirmed our decision based on the binding Cotnam precedent and               
          declined to consider the Commissioner’s argument that Cotnam was              
          wrongly decided, noting that Cotnam can be overruled only by the              
          court sitting en banc.  See Davis v. Commissioner,    F.3d                    
          2000 WL 491747 (11th Cir. 2000); see also Foster v. United                    
          States,    F. Supp. 2d    (N.D. Ala., Mar. 13, 2000), on appeal               

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