- 88 - With respect to Baylin, the majority opinion says: “The Court of Appeals for the Federal Circuit sought to prohibit taxpayers in contingency fee cases from avoiding Federal income tax with ‘skillfully devised’ fee agreements.” Majority op. p. 18. This language from Lucas v. Earl, which had to do with protecting the progressive rate structure, obviously has no bearing on latter-day contingent fee arrangements. I also disagree with Baylin’s in effect applying Old Colony Trust Co. to treat the fee, which becomes the lawyer’s share of the realized claim, as an amount realized by the client that is properly included in the sum of satisfactions procured by the client. Even though the lawyer may not obtain legal ownership of the claim, there is no denying that the lawyer acquires a substantial economic interest in the ultimate recovery. The majority opinion cites Brewer v. Commissioner, 172 F.3d 875 (9th Cir. 1999), affg. without published opinion T.C. Memo. 1997-542, as if it were substantial authority. Both the unpublished opinion of the Court of Appeals and this Court’s 58(...continued) with a zero basis on which the taxpayer realized deferred income or gain in the year of the recovery under the open transaction theory. This argument really is nothing more than a restatement of the anti-assignment of income argument that begs the question. The question unanswered by the Justice Department and the Commissioner is whether the taxpayer is entitled to treat the contingent fee as a cost of obtaining the total recovery or an offset that must be taken into account in computing gross income, rather than including the entire recovery in gross income and taking a separate deduction for the fee.Page: Previous 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 Next
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