- 49 -
distinguishable exception,21 memorandum opinions, not properly
regarded as binding precedent.22
The regular opinions of the Tax Court on which the majority
rely are not directly in point. There is another ground on which
Smith v. Commissioner, 17 T.C. 135 (1951), revd. on another issue
203 F.2d 310 (2d Cir. 1953); Cotnam v. Commissioner, 28 T.C. 947
(1957), affd. in part and revd. in part 263 F.2d 119 (5th Cir.
1959); Petersen v. Commissioner, 38 T.C. 137 (1962); O'Brien v.
Commissioner, 38 T.C. 707 (1962), affd. per curiam 319 F.2d 532
(3d Cir. 1963); and Estate of Gadlow v. Commissioner, 50 T.C. 975
(1968), were decided that distinguishes them from the case at
hand. Each of these earlier cases applied section 107 of the
1939 Code or a similar provision for relief from high marginal
rates of income tax on bunched receipts in one year (or a
relatively short period) of back pay, compensation from an
21 Bagley v. Commissioner, 105 T.C. 396, 418-419 (1995),
affd. on other issues 121 F.3d 393 (8th Cir. 1997), which was not
appealed on this issue, held, among numerous other things, that
hybrid attorney’s fees (fixed $50-hourly rate and 25-percent
contingency fee), to extent allocable to taxable portion of
awards, were deductible as itemized deductions under sec. 67(a),
rather than as offsets in computing gross income. Stated ground
of decision on this issue, not appealed by the taxpayers, was
that fee agreement did not create partnership or joint venture
within meaning of sec. 7701(a)(2) between plaintiff-taxpayer and
attorney. See infra pp. 70, 90-97.
22 See, e.g., Benci-Woodward v. Commissioner, T.C. Memo.
1998-395; Sinyard v. Commissioner, T.C. Memo. 1998-364;
Srivastava v. Commissioner, T.C. Memo. 1998-362; Coady v.
Commissioner, supra; Brewer v. Commissioner, T.C. Memo. 1997-542,
affd. without published opinion 172 F.3d 875 (9th Cir. 1999).
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