Sigitas J. Banaitis - Page 14




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          holding, proceeds of a judgment or settlement which would be                
          includable in the taxpayer’s income if paid directly to the                 
          taxpayer, and which are instead paid to a taxpayer’s attorney               
          pursuant to an attorney contingent fee agreement are income to              
          the taxpayer.  Kenseth v. Commissioner, supra.  The Court of                
          Appeals for the Seventh Circuit recently affirmed this holding.             
          Kenseth v. Commissioner, 259 F.3d 881 (7th Cir. 2001).                      
               We recognize that there is a split among the Courts of                 
          Appeals on this question.  The Court of Appeals for the Fifth               
          Circuit, in Cotnam v. Commissioner, 263 F.2d 119 (5th Cir. 1959),           
          affg. in part and revg. in part 28 T.C. 947 (1957), held that an            
          attorney’s lien under Alabama law provided the attorney with a              
          property right in the lawsuit.  Therefore, the court held that              
          the proceeds paid directly to the attorney pursuant to a                    
          contingent fee agreement constituted the attorney’s property and            
          were not income to the taxpayer.  The Court of Appeals for the              
          Sixth Circuit, on a somewhat different theory, held that fees               
          paid to an attorney under a contingent fee agreement are not                
          income to the taxpayer.  Estate of Clarks ex rel. Brisco-Whitter            
          v. United States, 202 F.3d 854 (6th Cir. 2000).  On the other               
          hand, the Courts of Appeals for the Third, Seventh, Ninth and               
          Fourth Circuits have disagreed with the Fifth and Sixth Circuit’s           
          reasoning.  Kenseth v. Commissioner, 259 F.3d 881 (7th Cir.                 
          2001); Young v. Commissioner, 240 F.3d 369 (4th Cir. 2001), affg.           






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