Frank and Barbara Biehl - Page 8




                                        - 8 -                                         
          Discussion                                                                  
               This is yet another case in which a taxpayer who                       
          successfully prosecuted a wrongful termination claim against his            
          former employer, obtaining a taxable recovery, has attempted to             
          avoid treating as an itemized deduction from adjusted gross                 
          income the attorney’s fee paid to his attorney under their                  
          contingent fee agreement.  It is clear under the jurisprudence of           
          the Tax Court, and the Court of Appeals for the Ninth Circuit, to           
          which this case would be appealable, that such a fee is not                 
          excluded from gross income under the “common law” of taxation.2             
          Petitioners have therefore chosen another tack on which there is            
          no authority on point in the Ninth Circuit:  that the fee was               




               2See Kenseth v. Commissioner, 114 T.C. 399 (2000), affd. 259           
          F.3d 881 (7th Cir. 2001); Banaitis v. Commissioner, T.C. Memo.              
          2002-5; Freeman v. Commissioner, T.C. Memo. 2001-254; Banks v.              
          Commissioner, T.C. Memo. 2001-48.  Compare Srivastava v.                    
          Commissioner, 220 F.3d 353 (5th Cir. 2000), revg. in part, affg.            
          in part, and remanding T.C. Memo. 1998-362; Davis v.                        
          Commissioner, 210 F.3d 1346 (11th Cir. 2000), affg. T.C. Memo.              
          1998-248; Estate of Clarks v. United States, 202 F.3d 854 (6th              
          Cir. 2000); Cotnam v. Commissioner, 263 F.2d 119 (5th Cir. 1959),           
          revg. in part 28 T.C. 947 (1957), with Sinyard v. Commissioner,             
          268 F.3d 756 (9th Cir. 2001), affg. T.C. Memo. 1998-364; Benci-             
          Woodward v. Commissioner, 219 F.3d 941, 943 (9th Cir. 2000),                
          affg. T.C. Memo. 1998-395; Coady v. Commissioner, 213 F.3d 1187             
          (9th Cir. 2000), affg. T.C. Memo. 1998-291; Brewer v.                       
          Commissioner, T.C. Memo. 1997-542, affd. without published                  
          opinion 172 F.3d 875 (9th Cir. 1999); Martinez v. Commissioner,             
          T.C. Memo. 1997-126, affd. without published opinion 166 F.3d 343           
          (9th Cir. 1998); Fredrickson v. Commissioner, T.C. Memo. 1997-              
          125, affd. without published opinion 166 F.3d 342 (9th Cir.                 
          1998).                                                                      





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