- 44 - There is no evidence in the record that Mr. Kenseth or any other class member ever expressed dissatisfaction with the services of Fox & Fox or tried to bring in other attorneys to participate in or take over the prosecution of any of the ADEA claims. Discussion My task is to persuade the reader that the governing law permits-–indeed compels--the ultimate finding that Mr. Kenseth did not retain enough control over his claim to justify including in his gross income any part of the contingent fee paid to his attorneys. 1. Issue Is Ripe for Reexamination My dissatisfaction with the results of recent cases,15 antedating publication of Estate of Clarks v. United States, 202 14(...continued) inconsistency have no bearing on the outcome of this case, other than to indicate uniformity in the treatment of class members consistent with their lack of individual control over the outcome. 15 The unsatisfactory results of those cases (cited infra notes 21-22), both absolutely and from a horizontal equity standpoint, are highlighted by the treatment of legal fees paid to prosecute claims arising out of the claimant’s business as an independent contractor, which are allowed as above-the-line trade or business expense deductions under sec. 162(a). See Guill v. Commissioner, 112 T.C. 325 (1999). Kalinka, “A.L. Clarks Est. and the Taxation of Contingent Fees Paid to an Attorney”, 78 Taxes 16, 23 (Apr. 2000), observes that adoption of the view espoused in this dissent will still put in an unfavorable tax position non-business claimants who obligate themselves to pay attorney’s fees at hourly rates in order to obtain taxable recoveries. I agree that congressional action would be necessary to change the unfavorable tax result for such claimants.Page: Previous 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Next
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