Hughes A. and Marilyn B. Bagley - Page 26

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            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 party                      





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