Eldon R. Kenseth and Susan M. Kenseth - Page 48

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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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