Eldon R. Kenseth and Susan M. Kenseth - Page 58




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         otherwise negligible income against which to deduct the fee,                   
         resulting in a deficiency of more than $36,000.33                              
              The Tax Court first held that the recovery was compensation               
         income rather than a nontaxable bequest; on this issue the Court               
         of Appeals for the Fifth Circuit unanimously affirmed.  On the                 
         second question, whether the contingent legal fee was excluded                 
         from the compensation to be spread back or merely a useless                    
         deduction in the year of receipt by the attorneys, Judge Wisdom,               
         writing for the panel, made clear that he disagreed with the                   
         outcome in the taxpayer’s favor, stating as follows:                           
                    A majority of the Court, Judges Rives and Brown,                    
              hold that the $50,365.83 paid Mrs. Cotnam’s attorneys                     
              should not be included in her gross income.  This sum                     
              was income to the attorneys but not to Mrs. Cotnam.                       
                           *    *    *    *    *    *    *                              
                    The facts in this unusual case, taken with the                      
              Alabama statute, put the taxpayer in a position where                     
              she did not realize income as to her attorneys’                           
              interests of 40% in her cause of action and judgment.                     
              [Cotnam v. Commissioner, 263 F.2d at 125.]                                





               33 Because of the high marginal rates of Federal income tax              
          in effect in 1940-44 and 1948, inclusion of the gross recovery in             
          1948 income and allowance of the deduction in that year would                 
          have resulted in a greater deficiency than that arising under the             
          apportionment of the gross income over the prior years under 1939             
          Code sec. 107, even if the fee were treated as a deduction or                 
          offset for 1948.  The taxpayer was arguing for even greater                   
          relief, that the compensation received in 1948 and apportioned                
          under sec. 107 over the earlier years should be reduced by the                
          legal fee.                                                                    





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