-20- a contingent fee agreement was includable in the plaintiff’s gross income. The Supreme Court held that a contingent fee agreement between an attorney and a client should be viewed as an anticipatory assignment to the attorney of a portion of the client’s income from any litigation recovery12 and that, “as a general rule, when a litigant’s recovery constitutes income, the litigant’s income includes the portion of the recovery paid to the attorney as a contingent fee.” Id. at ___, ___, 125 S. Ct. at 829, 831. The Supreme Court’s holding is consistent with prior opinions of this Court holding that the portion of a recovery paid to an attorney as a contingent fee is includable in the litigant’s income. See Kenseth v. Commissioner, 114 T.C. 399 (2000), affd. 259 F.3d 881 (7th Cir. 2001); O’Brien v. Commissioner, 38 T.C. 707, 712 (1962), affd. per curiam 319 F.2d 532 (3d Cir. 1963). 2. The Parties’ Contentions Petitioner argues that the portion of the settlement amount used to pay his attorney’s fees is not includable in his gross 12Under the anticipatory assignment of income doctrine, a taxpayer cannot exclude an economic gain from gross income by assigning the gain in advance to another party. Commissioner v. Banks, 543 U.S. ___, ___, 125 S. Ct. 826, 831 (2005). The rationale for this doctrine is that “gains should be taxed ‘to those who earn them’, a maxim we have called ‘the first principle of income taxation’”. Id. at ___, 125 S. Ct. at 831 (citations omitted). In order to preserve this principle, when income is anticipatorily assigned it is attributed to the taxpayer who retains dominion over the income-generating asset. Id. at ___, 125 S. Ct. at 831-832.Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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