- 26 - issues in the IBP litigation, which we have held to be for punitive damages, is not excludable from his income under section 104(a)(2). Petitioner contends that the contingent legal fees paid to his attorney in connection with his litigation with IBP should be a reduction of the amount he received pursuant to judgment or in settlement of the IBP litigation. Respondent contends that these fees, to the extent deductible, should be considered miscellaneous itemized deductions subject to reduction by 2 percent of petitioner's adjusted gross income under section 67(a). The basis of petitioner's contention is that the contingent fee arrangement created a joint venture or partnership between him and the law firm. Petitioner argues that the portions of the judgment and settlement paid over to the law firm pursuant to that contingency fee were not income to petitioner. Section 7701(a)(2) defines a partnership as "a syndicate, group, pool, joint venture, or other unincorporated organization, through or by means of which any business, financial operation, or venture is carried on". Whether a partnership exists is a question of fact. To be a partnership, the parties, in good faith and acting with a business purpose, must intend to join together in the present conduct of an enterprise. Commissioner v. Culbertson, 337 U.S. 733, 742 (1949); see Estate of Smith v. Commissioner, 313 F.2d 724, 732-733 (8th Cir. 1963), affg. in part, revg. in part and remanding 33 T.C. 465 (1959). In determining whether a partnership exists for purposes of Federal tax, we have looked at such factors as the agreement of the parties and their conduct in executing its terms; the contributions which each party has made to the venture; each party's control over income and capital, and the right of each to make withdrawals; and, most relevant to the issue here before us, whether each party was a principal and coproprietor, sharing a mutual proprietary interest in the net profits and having an obligation to share the net losses. This is distinguished from a relationship where one partyPage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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