- 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.
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