Eldon R. Kenseth and Susan M. Kenseth - Page 88




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              With respect to Baylin, the majority opinion says:  “The                  
         Court of Appeals for the Federal Circuit sought to prohibit                    
         taxpayers in contingency fee cases from avoiding Federal income                
         tax with ‘skillfully devised’ fee agreements.” Majority op. p.                 
         18.  This language from Lucas v. Earl, which had to do with                    
         protecting the progressive rate structure, obviously has no                    
         bearing on latter-day contingent fee arrangements.  I also                     
         disagree with Baylin’s in effect applying Old Colony Trust Co. to              
         treat the fee, which becomes the lawyer’s share of the realized                
         claim, as an amount realized by the client that is properly                    
         included in the sum of satisfactions procured by the client.                   
         Even though the lawyer may not obtain legal ownership of the                   
         claim, there is no denying that the lawyer acquires a substantial              
         economic interest in the ultimate recovery.                                    
              The majority opinion cites Brewer v. Commissioner, 172 F.3d               
         875 (9th Cir. 1999), affg. without published opinion T.C. Memo.                
         1997-542, as if it were substantial authority.  Both the                       
         unpublished opinion of the Court of Appeals and this Court’s                   


              58(...continued)                                                          
          with a zero basis on which the taxpayer realized deferred income              
          or gain in the year of the recovery under the open transaction                
          theory.  This argument really is nothing more than a restatement              
          of the anti-assignment of income argument that begs the question.             
          The question unanswered by the Justice Department and the                     
          Commissioner is whether the taxpayer is entitled to treat the                 
          contingent fee as a cost of obtaining the total recovery or an                
          offset that must be taken into account in computing gross income,             
          rather than including the entire recovery in gross income and                 
          taking a separate deduction for the fee.                                      





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