Eldon R. Kenseth and Susan M. Kenseth - Page 73




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         arrangements that, if successful, would be exploited by others.                
         As a result, legislative and judicial countermeasures “have come               
         to permeate the tax law so completely that they sometimes                      
         determine which of several parties to an ordinary business                     
         transaction must report a particular receipt or can deduct a                   
         liability.”  Id.  However, those observations don’t answer the                 
         question.  They just remind us that the taxpayer’s arguments                   
         deserve strict scrutiny.                                                       
              I also acknowledge that the assignor’s lack of retained                   
         control may be trumped if the subject of the assignment is                     
         personal service income.44  Unlike the trust and property cases,               
         Lucas v. Earl, supra, can be rationalized not so much on the                   
         service provider’s retained control over whether or not he                     
         works,45 “but on the more basic policy to ‘tax salaries to those               
         who earned them’”.46                                                           
              My response is that Mr. Kenseth’s claim did not generate                  
         personal service income.  Even though the loss of past earnings                


               44 3 Bittker & Lokken, Federal Taxation of Income, Estates,              
          and Gifts 75-7 (2d ed. 1991).                                                 
               45 The Court of Appeals in Estate of Clarks v. United                    
          States, supra, misstates Lucas v. Earl, 281 U.S. 111 (1930), in               
          saying that in that case, as in Helvering v. Horst, supra, “the               
          income assigned to the assignee was already earned, vested and                
          relatively certain to be paid to the assignor”.  As a matter of               
          fact, the assignment document in Lucas v. Earl had been executed              
          in 1901, long before the effective date of the 16th Amendment;                
          the taxable years in issue were 1920 and 1921.  See Lucas v.                  
          Earl, supra at 113.                                                           
               46 Bittker & Lokken, supra, at 75-11; see also Chirelstein,              
          Federal Income Taxation 194-195, 214-216 (8th ed. 1999).                      



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