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Tax Consequences of Contingency Fee Arrangements Leading up to and After Commissioner V

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Tax Consequences of Contingency Fee Arrangements Leading up to and After Commissioner V WON THE LEGAL BATTLE, BUT AT WHAT TAx COST TO YOUR CLIENT: TAX CONSEQUENCES OF CONTINGENCY FEE ARRANGEMENTS LEADING UP TO AND AFTER COMMISSIONER V. BANKS Leah Witcher Jackson* TABLE OF CONTENTS 1. INTRODUCTION ................................................................... 52 II. FEDERAL INCOME PRINCIPLES APPLICABLE TO THE CONTINGENCY FEE DEBATE ............................................... 55 A. Basic Accounting PrinciplesRequire Offsetting Costs Against Income ............................................................. 55 B. Influence of PoliticalProcess on FederalIncome Tax Laws ............................................................................ 56 C. Application of Income Tax Principlesto Contingency Fee A wards.................................................................. 57 D. Supreme Court Doctrine ofAnticipatory Assignment of Income Priorto Commissioner v. Banks ................. 62 1. Earned Income Is Taxed to the Person Whose Personal Efforts Produced It .................................. 63 2. Income Produced by Property Is Taxed to the Owner of the Property .............................................. 64 3. Assignment of Service Income or Income Produced by Property in Satisfaction of a Debt Owed to a Third Party .............................................. 66 4. Summary of the Relationship of Fruit and Tree to Income and Earners and Property ........................... 67 III. PRIOR TO COMMISSIONER v. BANKS, CIRCUITS SPLIT OVER THE APPLICABLE DOCTRINE FOR TAXATION OF CONTINGENCY FEE AGREEMENTS ........................................ 68 A. Assignment-of-Income DoctrineApplied in the Majority of Contingency Fee Cases ............................. 68 Associate Dean and Professor of Law, Baylor University; B.B.A. 1983, Baylor University; J.D. 1985, Baylor Law School. BAYLOR LAWREVIEW (Vol. 57:1 1. State-Law-Specific Approach Recognizes that a Client Transfers a Property Interest to the Attorney .... 69 a. Fifth Circuit: State Law in Alabama Creates Equitable Assignment Through Contingency Fee Agreement .................................................. 69 b. Eleventh CircuitBound to Follow Fifth Circuit's Cotnam: Alabama Law Transfers Interest in Lawsuit............................................ 70 c. Sixth Circuit: Michigan Law Operates Similarly to Cotnam's Alabama Law and Client Not Taxed on Attorney's Fee ............................ 71 2. State-Law-Specific Does Not Allow for Effective Transfer of Property Interest to the Lawyer ............ 72 a. Ninth Circuit'sCoady and Benci-Woodward: Alaska and California State Laws Do Not Allow for Effective Transfer of Property Interest to Lawyer .............................................. 72 b. Banaitis: Ninth Circuit Finds Oregon Law Vests Lawyers with Property Rights and Transfers Ownership......................................... 74 c. Federal,Second, Fourth, Seventh and Tenth CircuitsAgree that Contingency Fee Agreements Do Not Transfer Ownership in Maryland, Vermont, North Carolina, Wisconsin and Missouri ..................................... 75 3. Taxpayer Required to Include Entire Amount of Recovery in Gross Income Based on General Assignment-of-Income Doctrine Without Specific State Law Implication .............................................. 76 a. FederalCircuit: Contingency Fee Arrangement Is an Anticipatory Assignment of Income in Line with Earl and Horst .................. 76 b. Fourth CircuitAgrees with Federal Circuitand Finds an Anticipatory Assignment of Income ........ 77 4. Taxpayer Makes an Effective Transfer of Interest Based on General Assignment-of-Income Doctrine Without Specific State Law Implication ................. 79 2005] WON THE LEGAL BATTLE, BUTAT WHAT TAX COST 49 a. Fifth Circuit Revisits Assignment-of-Income ......... 79 b. Sixth Circuit'sBanks. Contingency Fee Cases Distinguishablefrom ClassicAnticipatory Assignment-of-Income Cases and Assignment- of-Ownership Interest Found............................ 80 5. Assignment of Income as a Discharge of Indebtedness to a Third Party: Ninth and Tenth C ircuits .................................................................... 84 B. Circuits Compare Contingency Fee Agreements to Joint Venture or PartnershipArrangements ................ 85 1. Cases Compare Contingency Fee Contract to Partnership Agreement ........................................... 85 a. Sixth Circuit: Contingency Fee Arrangement like an Interest in Partnership......................... 85 b. Fifth Circuit: Contingency Fee Arrangement Similar to PartnershipInterest ......................... 86 2. Cases Dismissing Arguments that Contingency Fee Arrangements Are like Partnerships ....................... 86 a. Ninth Circuit: PartnershipArgument Not ProperlyBefore the Court ................................ 86 b. Seventh Circuit: State Law Does Not Allow Attorney and Client Partnership....................... 87 C. Origin-of-Claim DoctrineApplied to Determine Contingency Fee Treatment Based upon the Characterizationof the Claim ....................................... 87 1. Federal Circuit: Attorney's Fees Allocated to the Cost of Disposition of Condemned Property ....... 87 2. First Circuit: Contingency Fee's Miscellaneous Itemized Deduction Because Claim Was Related to Employment Income ................................................ 88 D. Contingency Fees in Employment Cases as Reimbursed Employee Expenses .................................. 89 1. First Circuit: Reimbursed Employee Expense Theory Without Support in the Record ................... 89 2. Ninth Circuit: Contingency Fee Not Incurred During the Performance of Services as an Em ployee ............................................................... 89 BAYLOR LAWREVIEW [Vol. 57:1 3. Amicus Brief: Contingency Fee Agreement Is an Employee Reimbursement Arrangement ................ 91 E. Contingency Fee Arrangements as Open Transaction Subject to § 83 ............................................................. 92 1. Eleventh Circuit: Contingency Fee Arrangement Not Open Transaction Because IRS Failed to Prove Value Undeterminable ........................................... 92 2. Amicus Brief: Uncertainty of Contingency Fee Makes It a Transaction Governed by § 83 .............. 92 F. Contingency Fee, as a TransactionalCost, Is a Capital Expenditure and Offsets the Gain on Disposition of the Claim.............................................. 93 1. First Circuit: No Offset for Settlement for Age Discrimination Claim, Only for Disposition of Capital A ssets ......................................................... 93 2. Seventh Circuit: No Exclusion from Income, Only Deductible Expense ................................................ 95 3. Amicus Brief: Fees Are Subtracted From Proceeds at the Time of Disposition as Capital Expenditures ..... 95 IV. COMMISSIONER V. BANKS APPLIES ASSIGNMENT OF INCOME DOCTRINE, REQUIRING LITIGANT TO INCLUDE ENTIRE AWARD IN GROSS INCOME ................................................... 96 A. PreliminaryObservations Recognize that Amendment to the InternalRevenue Code Will Change Outcome of Similar Cases Prospectively.......................................... 96 B. Broad Definition of Gross Income Prohibits Taxpayer from EscapingIncome Taxation Through Anticipatory Assignment of Income ................................................... 98 C. Arguments for the Exclusion from Income Dismissed ...... 98 1. Anticipatory Assignment of Income Applies to Speculative and Uncertain Claims Recovered or Increased Through Combined Efforts ..................... 99 2. Contingency Fee Arrangements Are Not Partnerships ............................................................. 99 3. Other Theories Not Properly Considered by Lower C ourts ......................................................................... 100 20051 WON THE LEGAL BATTLE, BUTAT WHAT TAX COST 51 D. Court Refused to Considerthe Adverse Affect of Inclusion of Income on StatutoryFee Shifting Cases ..... 101 E. Court Did Not Address Argument that Fee Is Debt Ow ed by Client ................................................................ 101 F. Affect of Banks Ruling on Anticipatory Assignment of Incom e Doctrine .............................................................. 102 1. Lucas' Assignment-of-Earned-Income Principle Is Inapplicable to Contingency Fee Cases ..................... 102 2. Banks Applies Assignment-of-Income-from- Property Principles to Contingency Fee Cases .......... 103 3. Affect of Banks on Fruit-Tree Metaphor ................... 104 V. POLICY AND OTHER REASONS SUPPORTING THE CONCLUSION THAT CONTNGENCY FEE ARRANGEMENTS SHOULD NOT BE TAXED TO INJURED PARTY .......................... 105 A. Taxing Contingency Fees to PlaintiffHas Chilling Effect on Private Enforcement of Rights ......................... 105 B. Taxing Attorney's Fees to Client Results in Unfair Tax When Monetary DamagesAre Small Comparedto Court-Orderedor Statutory Fees Paid to Attorney ........ 107 C. Taxing Contingency Fee to IndividualPlaintiffs Gives UnfairAdvantage to Business Plaintiffs ......................... 109 D. Taxing Contingency Fee to PlaintiffHas Unjust Result Because of the Denial of Deductionfor the Alternative M inim um Tax ................................................................... 111 E. Tax Treatment of Contingency Fee Agreements Should Also Apply to Hourly Fee Arrangements ........................ 113 VI. How Do WE REACH A VIABLE AND WORKABLE SOLUTION TO CREATE A FAIR, EQUITABLE AND EFFICIENT OUTCOME? .. 114 A. New § 62(19) Allows Deductionfor
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