George G. Green - Page 33

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          taxpayer to exclude from gross income the portion of his or her             
          recovery attributable to contingent attorney’s fees.  See                   
          Srivastava v. Commissioner, 220 F.3d 353, 355 (5th Cir. 2000),              
          revg. and remanding in part and affg. on another issue T.C. Memo.           
          1998-362.  On January 24, 2005, the Supreme Court resolved a                
          split in the circuits over the contingent fee issue, holding                
          that, as a general rule, when a taxpayer’s litigation recovery              
          constitutes income, the taxpayer is taxable on the contingent fee           
          portion of the litigation recovery.  Commissioner v. Banks, 543             
          U.S. ___, 125 S. Ct. 826, 829 (2005).                                       
               Petitioner contends that the amendment would be prejudicial            
          to him.  Citing Estate of Horvath v. Commissioner, 59 T.C. 551,             
          555-556 (1973), petitioner argues that the attorney’s fees issue            
          “necessarily will require dramatically different evidence,                  
          analysis, and case development from the issues previously pled.”            
          Although petitioner has not identified how the evidence or                  
          analysis would be “dramatically different”, we agree that the               
          applicability of the Supreme Court’s Banks opinion is not                   
          clearcut or absolute.  Certain arguments of the parties in Banks            
          were not addressed because they were not made in the lower                  
          courts.  Commissioner v. Banks, 125 S. Ct. at 833.  We would have           
          to reopen the record so that these arguments could be properly              
          addressed in these cases.  We are not persuaded that justice                







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