Eldon R. Kenseth and Susan M. Kenseth - Page 79




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         contingent fee agreement.  For all these reasons, the broader                  
         ground of the decisions of the Courts of Appeals in Cotnam v.                  
         Commissioner, 263 F.2d 119 (5th Cir. 1959), and Estate of Clarks               
         v. United States, 202 F.3d 854 (6th Cir. 2000), applies to the                 
         case at hand.  The contingent fee agreement did not effect an                  
         assignment of income that must be disregarded for income tax                   
         purposes under Helvering v. Eubank, 311 U.S. 122 (1940),                       
         Helvering v. Horst, 311 U.S. 112 (1940), and Lucas v. Earl, 281                
         U.S. 111 (1930).                                                               
              This conclusion provides an independent and sufficient                    
         ground for the holding, decoupled from the narrow ground of                    
         Cotnam and Estate of Clarks regarding attorneys’ ownership                     
         interests in lawsuits under State law, that Mr. Kenseth’s gross                
         income in the case at hand does not include any part of the                    
         settlement proceeds paid to the Fox & Fox trust account and                    
         retained by Fox & Fox as its contingent fee.                                   
              The application of the decisions of the Courts of Appeals in              
         Cotnam and Estate of Clarks is not limited to situations in which              
         local law allows a transfer of a “proprietary” interest in the                 
         claim to the attorney.  These holdings apply to situations in                  
         which the attorney obtains only the usual security interest in                 
         the claim and its proceeds that is provided in most States.                    
              It is noteworthy that neither the additional statement of                 
         the Cotnam majority nor the dissent of Judge Wisdom referred to                







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