Eldon R. Kenseth and Susan M. Kenseth - Page 62




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         Commissioner, 50 T.C. 975 (1968) (distinguishing Pennsylvania                  
         law); Petersen v. Commissioner, 38 T.C. 137 (1962) (Nebraska and               
         South Dakota law); Benci-Woodward v. Commissioner, T.C. Memo.                  
         1998-395 (California law); Sinyard v. Commissioner, T.C. Memo.                 
         1998-364 (Arizona law); Srivastava v. Commissioner, T.C. Memo.                 
         1998-362 (Texas law); Coady v. Commissioner, T.C. Memo. 1998-291               
         (Alaska law).  But see O'Brien v. Commissioner, 38 T.C. 707                    
         (1962) (dictum that State law makes no difference), affd. per                  
         curiam 319 F.2d 532 (3d Cir. 1963).37                                          
              Wisconsin law governed the attorney-client relationship                   
         between Fox & Fox and Mr. Kenseth.  Wisconsin law arguably gives               
         attorneys the two unusual interests in their clients' lawsuits                 
         relied on by the majority opinion in Cotnam v. Commissioner, 263               






               37 Other Federal courts, in concluding that taxpayer-                    
          plaintiffs are taxable on contingent fees paid to their                       
          attorneys, have also noted that the State laws in issue do not                
          give attorneys proprietary or equitable interests in their                    
          clients’ recoveries or causes of action.  See Baylin v. United                
          States, 43 F.3d 1451, 1455 (Fed. Cir. 1995) (commenting on                    
          Maryland attorney’s lien statute); Estate of Clarks v. United                 
          States, 98-2 USTC par. 50,868, 82 AFTR 2d 7068 (E.D. Mich. 1998)              
          (distinguishing Cotnam v. Commissioner, supra, on the ground of               
          differences between Michigan and Alabama law), revd. 202 F.3d 854             
          (6th Cir. 2000)).  My view that the tax effects of contingent fee             
          agreements should be decided on the broader ground makes it                   
          unnecessary for me to take a position on the view of the Court of             
          Appeals for the Sixth Circuit that the Michigan common law                    
          attorney’s lien is the equivalent of the proprietary interest of              
          the attorney in the cause of action under Alabama law.                        





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