Eldon R. Kenseth and Susan M. Kenseth - Page 39

                                        - 39 -                                          
              9.  Preventing Tax Avoidance by Other Transferors ... 89                  
              10.  Cropsharing as Alternative to Joint                                  
                    Venture/Partnership Analogy ........... 90                          
         Conclusion ......................... 97                                        
         Findings and Resulting Inferences                                              
              I would find the ultimate fact that the elements of control               
         over the prosecution of the ADEA claims ceded by Mr. Kenseth and               
         assumed and exercised by Fox & Fox under the contingent fee                    
         agreement make it reasonable to include in petitioners’ gross                  
         income only Mr. Kenseth’s net share of the settlement proceeds,                
         $138,201.10  This means that, in computing Mr. Kenseth’s gross                 
         income from the settlement, his share of the proceeds should be                
         offset by the $91,800 portion of Fox & Fox’s $1,060,000                        
         contingent fee that reduced his share of such proceeds, not by                 

               10 In Helvering v. Horst, 311 U.S. 112 (1940) (gift of bond              
          interest coupons to taxpayer’s son), Justice Stone pointed out                
          that the ultimate question in deciding whether the assignment of              
          income rule applies is a question of fact whose answer should be              
          informed by the perceptions and reactions of the trier of fact to             
          the total situation:                                                          
               To say that one who has made a gift thus derived from                    
               interest or earnings paid to his donee has never                         
               enjoyed or realized the fruits of his investment or                      
               labor because he has assigned them instead of                            
               collecting them himself and then paying them over to                     
               the donee, is to affront common understanding and to                     
               deny the facts of common experience.  Common                             
               understanding and experience are the touchstones for                     
               the interpretation of the revenue laws. [Helvering v.                    
               Horst, 311 U.S. at 117-118; emphasis supplied.]                          
          See also Helvering v. Clifford, 309 U.S. 331, 338 (1940),                     
          discussed, cited, and quoted infra p. 47.                                     

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