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indirect enjoyment of wife’s benefit a factor in decision to
treat husband as owner of trust). Contingent fee agreements
between client and attorney do not present these problems.
Equally importantly, in Lucas v. Earl, supra, and Helvering
v. Horst, supra, the transferor–-in part due to the family
relationship–-was found to have retained a substantial and
significant measure of control after the transfer over the income
rights or property transferred. The presence of such continuing
control is undoubtedly important in deciding whether a transfer
should be treated as an invalid assignment of income. As the
Supreme Court stated in Commissioner v. Sunnen, 333 U.S. at 604:
The crucial question remains whether the assignor
retains sufficient power and control over the assigned
property or over receipt of the income to make it
reasonable to treat him as the recipient of the income
for tax purposes. * * *
Or, as the Supreme Court wrote in Corliss v. Bowers, 281 U.S.
376, 378 (1930) (revocable trust created by husband for benefit
of wife and children treated as invalid assignment of income):
taxation is not so much concerned with the refinements
of title as it is with actual command over the property
taxed * * *. * * * The income that is subject to a
man’s unfettered command and that he is free to enjoy
at his own option may be taxed to him as his income,
whether he sees fit to enjoy it or not. * * *
I acknowledge, with 3 Bittker & Lokken, Federal Taxation of
Income, Estates, and Gifts 75-2 (2d ed. 1991), that efforts to
shift income have extended beyond the family to other economic
units. Courts have been alert, whatever the motivation of the
taxpayers before them, to forestall the tax success of
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