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The Clintons' Legal Defense Fund: Income from Payment of Legal Expenses by Another and Deductibility of Such Expenses, 104 W Volume 104 | Issue 1 Article 7 September 2001 The linC tons' Legal Defense Fund: Income from Payment of Legal Expenses by Another and Deductibility of Such Expenses John R. Dorocak California State University, San Bernardino Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Legal Profession Commons, and the Tax Law Commons Recommended Citation John R. Dorocak, The Clintons' Legal Defense Fund: Income from Payment of Legal Expenses by Another and Deductibility of Such Expenses, 104 W. Va. L. Rev. (2001). Available at: https://researchrepository.wvu.edu/wvlr/vol104/iss1/7 This Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Dorocak: The Clintons' Legal Defense Fund: Income from Payment of Legal Ex THE CLINTONS' LEGAL DEFENSE FUND: INCOME FROM PAYMENT OF LEGAL EXPENSES BY ANOTHER AND DEDUCTIBILITY OF SUCH EXPENSES John R. Dorocak I. INTRODUCTION .................................................................................... 2 II. INCOME FROM PAYMENT OF EXPENSES BY ANOTHER ......................... 4 A . Introduction ........................................................................... 4 B. General Rules of Income Recognition..................................... 5 1. Old Colony Trust Co. and Pisani .............................. 5 2. Duberstein and IRS Rulings (on Transfers to Politicians) .............................. 7 C. The Clintons, Nixon, and the Teamsters ................. 9 1. The Clintons ............................................................. 9 2. Teamsters (O'Malley) .............................................. 11 3. Nixon (Carson)......................................................... 13 D. A Crummey Problem (Crummey and Cristofani) ..................... 15 E. Unfairness (PaulaJones) .................................................... 16 III. DEDUCTION OF LEGAL EXPENSES ...................................................... 16 A. Introduction: The GeneralRules--Gilmore and More (Jenkins and Salt) ................................................ 16 B. Politicians,Sexual Harassment,and the Gilmore Test Professor of Accounting, California State University, San Bernardino; Honors A.B., Xa- vier University; J.D., Case Western Reserve University; LL.M. (Tax), University of Florida; C.P.A. California and Ohio. The author thanks Marion Wiltjer whose invaluable and profes- sional assistance was essential to the production of these pages and many others. Thank you also to my graduate assistant Pritpaul Singh, M.B.A., California State University, San Bernar- dino. And, of course, thank you to my wife Tanya, who constantly inspires me, to our cat Mitzi, who constantly diverts me, and to our son Jonathan, who constantly interests me. Additional thanks to participants at Western Region American Accounting Association Annual Meetings, particularly Richard Emery, Linfield College, and John Karayan, California State Polytechnic University, Pomona, and at Pacific Southwest Academy of Legal Studies in Business annual conferences, to all of whom I have been remiss in expressing gratitude formally in writing for their comments, suggestions, and questions. Published by The Research Repository @ WVU, 2001 1 West VirginiaWEST Law VIRGINIA Review, Vol. L4 104, W Iss.REVIEW 1 [2001], Art. 7 [Vol. 104 for Deducting Legal Expenses .............................................18 1. Politicians and Professionals: McDonald, Lussy, Messina, McDonald, & Soloman ..............................18 2. Sexual Harassment and the "Furtherance" Test .................23 C. Gilmore, the Clintons, and Deducting Legal Expenses ......26 IV. ALTERNATIVE MINIMUM TAX AND THE EXCLUSION FROM INCOME OF DEFENDANT'S ATIrORNEY'S FEES IN TRUST ........... 27 A. The AMT Problem: Attorney's Fees as Non-Deductible Miscellaneous Itemized Deductions...................................... 27 B. Cases Excluding PlaintiffsAttorney's Fees - Cotnam, Clarks, Baylin, Coady, and Kenseth ......................................28 1. C otnam .....................................................................28 2. C larks .......................................................................29 3. B aylin .......................................................................30 4. Coady .......................................................................30 5. Kenseth .....................................................................31 6. The Clintons and Excluding Defendant's Attorney's Fees ........................................................31 V. THE CLINTONS' LEGAL EXPENSES AND TAXPAYER PENALTIES, PREPARER PENALTIES, AND PREPARER ETHICS .................32 A. Taxpayer and PreparerPenalties ..........................................33 B. Application of Penalty Rules to the Clintons and Their Tax Return Preparer................................................... 36 C. Application of Ethical Rules to the Clintons' Tax Return Preparer............................................................ 39 V I. C ONCLUSION .......................................................................................41 I. INTRODUCTION Bill Clinton appears to be setting himself up for a tax problem. Some may ask, "How is he going to get out of this one?"' The President and Hillary I The President's legacy of various, and often self-inflicted, turmoil has been chronicled extensively elsewhere. See, e.g., infra, note 164. See also Eric Lichtblau, Clinton Strikes In- dictment Deal; Case Is Dropped as President Admits to False Testimony; Politics: Agreement in Lewinsky Sex Scandal Ends all of the Legal Fallout From Impeachment. He Will Lose Ar- kansas Law License for Five Years and Pay a $25,000 Fine, L.A. TIMES, Jan. 20, 2001, at Al (regarding the last-day plea bargain); Deborah Zobar-Enko, Clinton's Cloud of Scandal, REUTERS, Jan. 19, 2001 (regarding Whitewater, Travelgate, Vince Foster, Filegate, Web Hub- bell, and Monica). According to papers filed in the Arkansas Supreme Court investigation, Clinton's last-minute deal to avoid indictment was to pay $25,000 in costs to the Arkansas Supreme Court's Committee on Professional Conduct, agree to a five-year suspension of his law license, agree not to seek legal fees from the federal government regarding the Monica Lewinsky investigation, and admit that he "knowingly gave evasive and misleading answers" in a deposition. Clinton himself finally stated, "certain of my responses to questions about Ms. Lewinsky were false." Lichtblau, supra, at Al. And the fun never stops. Although Clinton agreed not to seek reimbursement for Monica-related fees, he might for others, including legal expenses of the impeachment. See Robert L. Jackson, Legal Fund for Clintons Falls Short in https://researchrepository.wvu.edu/wvlr/vol104/iss1/7 2 Dorocak: The Clintons' Legal Defense Fund: Income from Payment of Legal Ex 2001] THE CLINTONS' LEGAL DEFENSE FUND Rodham Clinton set up not one but two trusts to pay their diverse and mounting legal expenses. The second trust they set up, the Clinton Legal Expense Trust, formed in 1998, raised $7.3 million and paid out all but $500,000 in legal ex- penses by February 2000.2 However, the Clintons' tax returns for 1998 and 1999 have not reported income from the legal3 defense trust when it paid their legal bills, nor deducted those legal expenses. Final Accounting, L.A. TIMES, Mar. 15, 2001, at A27. Subsequently, the United States Su- preme Court suspended Clinton from practicing before the Court. See Mark Helm, Clinton Law Privileges Eroded More; Supreme Court Suspends His License to Argue Before Justices, SEATTLE POST-INTELLIGENCER, Oct. 2, 2001, at A3. 2 See Lee A. Sheppard, A Look at the Clinton and Gore Tax Returns, 87 TAX NOTES 472, 473 (2000) (citing the ARKANSAS DEMOCRAT-GAZETTE, Feb. 24, 2000, at Al). See also Penchina Web Design LLC, Clinton Legal Expense Trust, at http://www.clintontrust.com (last updated Aug. 17, 2001) [hereinafter Clinton Legal Defense Trust website]. The First Presiden- tial Legal Expense Trust Indenture was set up in June, 1994. See Kathleen Clark, Paying the Pricefor Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers, 50 STAN. L. REV. 65, 114 (1997). The original Clinton trust, because it was set up by the Clintons themselves, could not solicit donations. See id. at 150. That trust eventually returned all of the over $600,000 of donations. See id. at 119 n.276. See also Charles Lewis, Clinton Legal Defense Fund Mercenary Politics: Even Nixon Paid Bulk of His Bills Himself, SEATTLE POST-INTELLIGENCER, Mar. 4, 1999, at A15. On March 14, 2001, in its sixth semi-annual report, the second trust announced it had collected $8.7 million and paid $7.4 million of Bill and Hillary Clinton's $11.3 million expenses. See Clinton Legal Defense Trust website, supra. 3 See Sheppard, supra note 2, at 473. The legal expenses of Hillary Clinton, as well as Bill Clinton, will be discussed in this Article. At least some of Hillary's legal expenses have been paid by the trust, but it is not clear which investigations gave rise to which expenses. See Jack- son, supra note 1, at A27 and Clinton Legal Defense Trust website, supra note 2. "Whitewa- ter" initially involved an investment in Arkansas by both Hillary and Bill, and presumably could generate deductible legal
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