Eldon R. Kenseth and Susan M. Kenseth - Page 97




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         retains its character as compensation ordinary income.  The                    
         service provider’s income does not take its character from the                 
         property that belongs to the other party who made it available to              
         be worked on by the service provider.                                          


                                      Conclusion                                        
              The assignment of income cases decided by the Supreme Court               
         for the most part have arisen in intrafamily donative transfers.               
         Assignment of income cases arising in commercial contexts have                 
         concerned attempts at income tax avoidance between related                     
         parties.  The touchstone of these cases has been the retained                  
         control over the subject matter of the assignment by the                       
         assignor.                                                                      
              The control retained by Mr. Kenseth in this case was much                 
         less than the control retained by the assignor in any of the                   
         cases in which the assignment of income doctrine has been                      
         properly applied.  Indeed, the control retained by Mr. Kenseth                 
         was so much less as to make it unreasonable to charge him with                 
         the full amount of his share of the total settlement, without                  
         offset of the attorney’s fee apportioned against his share.  From              
         the inception of the contingent fee agreement, a substantial                   
         portion of any recovery that might be obtained was dedicated to                
         Fox & Fox, who through the mixture of their labor with the claims              
         of Mr. Kenseth and his colleagues, first, caused the claims to be              







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