- 90 - conclusion would open the door to tax avoidance. My response to such concerns is that the contingent fee agreement is a peculiar situation, far removed from the intrafamily and other related party transfers, including commercial assignments within economic units, that generated and continue to sustain the assignment of income doctrine. The result I espouse can be confined to the contingent fee situation; the tools of legal reasoning remain alive and well to enable the Commissioner and the courts to defend the fisc against transferors who in other contexts might seize upon my proposed result in this case to try to extend it beyond its proper limits. 10. Cropsharing as Alternative to Joint Venture/Partnership Analogy The suggestion of the Court of Appeals in Estate of Clarks v. United States, supra, that the contingent fee arrangement is like a partnership or joint venture has intuitive appeal. Posner, Economic Analysis of Law 624-626 (5th ed. 1998), describes the contingent fee agreement not only as a high interest rate loan that compensates the lawyer for the risk he assumes of not being paid at all if the claim is unsuccessful and for the postponement in payment,59 but also as a kind of joint 59 See also Garlock, Federal Income Taxation of Debt Instruments 6-10 (1998 Supp.): “Thus, rights to wholly contingent payments would be treated in accordance with their economic substance”. Garlock also comments p. 6-33: (continued...)Page: Previous 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 Next
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