- 23 - Section 61(a) provides that “gross income means all income from whatever source derived,” and typically, all gains are taxed unless specifically excluded. See James v. United States, 366 6(...continued) (11th Cir., Apr. 10, 2000), where the District Court generally followed Cotnam as binding precedent, but denied litigation cost explaining: The court does not find, however, that under � 7430(c)(4)(A)(i) the position of the United States (i.e., with respect to Cotnam) was not substantially justified. Yes, the court does conclude that Cotnam does control most of the issues respecting attorney’s fees and, until the Court of Appeals or Supreme Court rules otherwise, is binding on this court. But there are serious and legitimate questions as to whether the holding in Cotnam should continue to be followed in this or other circuits. Strong arguments can be made–-and presumably will be made by the government in seeking en banc consideration of this issue in the Davis case or on appeal of this case–-that Cotnam is not consonant with Supreme Court decisions like Horst and, indeed, is based on a misinterpretation of Alabama law involving contingent fee contracts and attorneys’ lien rights. In particular, Cotnam did not give attention to the continuing control that, even after entering into a contingent fee contract, the tort plaintiff has with respect to settlement of the entirety of the claim or to the continuing power of the client to discharge an attorney and effectively cancel the “assignment” of a share in later recoveries. The 1998 appeal by the government of Davis, filed before this case was brought, indicated that its attack upon Cotnam represents a fundamental disagreement with that decision, and not some personal animus against Foster in the present case. The rejection in January 2000 by a second appellate court (the Sixth Circuit in the Estate of Clarks case) does not support an assertion that the government’s [sic] in this case was without substantial foundation. This court determines that Foster is not entitled to litigation costs under � 7430.Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
Last modified: May 25, 2011