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recent commentator,19 we need not wait for Congress to change
those provisions. We’re dealing with a problem under the common
law of taxation;20 what the courts have created and applied,
courts can interpret, refine, and distinguish to determine
whether in changed circumstances the conditions for application
of the doctrine have been satisfied.
2. Tax Court’s Jurisprudence on Tax Treatment of Contingent
Fees--Dicta for Case at Hand
The inquiry begins with a reexamination of the original
cases--published as regular Tax Court opinions--cited by the
majority as originating and applying the rule that the Supreme
Court’s assignment of income opinions require that a contingent
fee be allowed only as a deduction, not as an offset in computing
gross income. All these cases were interpretations and
applications of the spreadback provisions of section 107 of the
1939 Code or its statutory successors in the 1954 Code. What the
Tax Court said in these cases about those Supreme Court opinions
was dictum. The Tax Court’s recent opinions on the subject,
concerning itemized deductions and the AMT, are, with one
19 See Kalinka, “A.L. Clarks Est. and the Taxation of
Contingent Fees Paid to an Attorney”, 78 Taxes 16 (Apr. 2000).
20 See Brown, “The Growing ‘Common Law’ of Taxation”, 1961
S. Cal. Tax Inst. 1, 13-21.
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