Robert L. Allum - Page 20

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          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.                                                      





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