- 48 - 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.Page: Previous 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 Next
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