Eldon R. Kenseth and Susan M. Kenseth - Page 86




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              8.  Majority Opinion’s Handling of Authorities                            
              The majority misstate the Alexander, Baylin, Brewer, and                  
         O’Brien cases (majority op. pp. 14, 17-18, and 21, respectively)               
         and what they stand for.                                                       
              The majority opinion at page 14 creates a misleading                      
         impression about the significance of Alexander v. IRS, 72 F.3d                 
         938, 948 (1st Cir. 1995), affg. T.C. Memo. 1995-51.  The Court of              
         Appeals for the First Circuit did affirm the Tax Court, and the                
         Court of Appeals did say that applying the AMT to the itemized                 
         deductions “smacks of injustice”, as indeed it did--the sum of                 
         the legal fees and the additional tax liability exceeded the                   
         taxpayers’ net taxable recovery.  What the majority opinion omits              
         is that the taxpayer in Alexander did not argue, as petitioners                
         argue in the case at hand, that the legal fee should be excluded               
         from petitioner’s gross income because the assignment of income                
         rules don’t properly apply.57  There was both a taxable recovery–-             
         $250,000–-and a concededly non-taxable recovery–-$100,000–-and                 
         the taxpayer deducted an allocable part of his legal fees                      
         (computed on a disproportionate time basis, which the                          
         Commissioner did not dispute) from the taxable recovery.  The Tax              
         Court and the Court of Appeals for the First Circuit held,                     



               57 Alexander v. IRS, 72 F.3d 938, 948 (1st Cir. 1995), affg.             
          T.C. Memo. 1995-51, lacked any findings as to whether the legal               
          fee in question was a contingent fee or a fee based on hourly                 
          rates for which the taxpayer was personally liable.                           





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