- 33 - 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 justicePage: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
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