- 16 - 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, 220Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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