Jack and Janet Freeman - Page 16




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             gross income under section 104(a)(2) because the underlying              
             cause of action giving rise to the recovery was based                    
             entirely upon a contract cause of action and not upon tort               
             or tortlike rights as required by section 1.104-1(c),                    
             Income Tax Regs.  See Commissioner v. Schleier, 515 U.S.                 
             323 (1995).                                                              
             Whether Petitioners May Exclude From Gross Income a Portion              
             of the Recovery Equal to the Amount Paid to Their Attorneys              
             Under the Contingent Fee Agreement                                       
                  Petitioners argue that if we hold that section                      
             104(a)(2) does not apply, with the result that the judgment              
             proceeds are includable in their 1994 gross income, then                 
             the portion of the judgment paid directly to their                       
             attorneys under the retainer agreement is excludable from                
             gross income.  Petitioners ask us to follow Cotnam v.                    
             Commissioner, 263 F.2d 119 (5th Cir. 1959), revg. in part                
             and affg. on another issue 28 T.C. 947 (1957), and Estate                
             of Clarks v. United States, 202 F.3d 854 (6th Cir. 2000).                
             In Cotnam v. Commissioner, supra, the Court of Appeals for               
             the Fifth Circuit held that the amount of a contingent fee               
             paid to the taxpayer's attorneys out of a judgment was not               
             income to the taxpayer because under Alabama law a                       
             contingent fee contract operates as a lien on the recovery               
             that, in effect, transfers part of a plaintiff's claim to                
             the attorneys.  See also Srivastava v. Commissioner, 220                 






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