Eldon R. Kenseth and Susan M. Kenseth - Page 44

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              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                 
              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                 
              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               

          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                     
               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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