Eldon R. Kenseth and Susan M. Kenseth - Page 69




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         include the entire recovery in the client’s income and to                      
         relegate the client to a deduction that is not fully usable.                   
              I am in complete agreement with Judges Rives and Brown and                
         the panel in Estate of Clarks that the assignment of income                    
         doctrine should not apply to contingent fee agreements.  A                     
         contingent fee agreement is not an intrafamily donative                        
         transaction, or even a transaction within an economic family,                  
         such as parent-subsidiary, see United Parcel Serv. of Am., Inc.                
         v. Commissioner, T.C. Memo. 1999-268, or the doctors’ service                  
         partnership and related HMO in United States v. Basye, 410 U.S.                
         441 (1973).  Notwithstanding the attorneys’ fiduciary                          
         responsibilities to their client, a contingent fee agreement is a              
         commercial transaction between parties with no preexisting common              
         interest that sharply reduces or eliminates the client’s dominion              
         and control over both the cause of action and any recovery.  Our               
         decisions distinguishing (or just not following) the decision of               
         the Court of Appeals in Cotnam v. Commissioner, supra, have not                
         adequately considered the characteristics of contingent fee                    
         agreements or the effect those characteristics should have in                  
         deciding whether such agreements should be treated as assignments              
         of income to be disregarded for Federal income tax purposes.                   
              I now address the points of the Court of Appeals for the                  
         Sixth Circuit in Estate of Clarks v. United States, supra, that                
         go beyond the points of Judges Rives and Brown in Cotnam v.                    







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