Eldon R. Kenseth and Susan M. Kenseth - Page 90




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         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...)           





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