Eldon R. Kenseth and Susan M. Kenseth - Page 81




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         benefits of net operating losses arising in consolidated return                
         periods:                                                                       
                    Each corporation then had a bargaining position.                    
              The stakes were high.  Neither could win them alone,                      
              although each had an indispensable something that the                     
              other was without.  It was as if a treasure of                            
              seventeen million dollars were offered * * * to whoever                   
              might have two keys that would unlock it.  Each of                        
              these parties had but one key, and how can it be said                     
              that the holder of the other key had nothing worth                        
              bargaining for?                                                           
              The tax position of Mr. Kenseth is stronger than that of                  
         either claimant in the Western Pac. R.R. case.  Justice Jackson’s              
         reference to the “treasure” is to a static, fixed, pre-determined              
         amount, the tax benefit from the net operating losses.  When                   
         attorney and client enter a contingent fee agreement, the amount               
         of the ultimate recovery is unknown; the recovery is determined                
         in a dynamic process in which the exercise of the experience and               
         skill of the attorney results both in some recovery and in an                  
         increase in the value of that recovery.  The attorney creates and              
         adds value; the efforts of the attorney contribute to--indeed he               
         may be solely responsible for--both the recovery and its                       
         augmentation.  Attenuated subtleties and refinements of title                  
         have nothing to do with the practical realities of contingent fee              
         agreements and the relative interests of attorney and client in                
         any recovery that may ultimately be realized.                                  










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