Jerry and Patricia A. Dixon, et al. - Page 133

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               We therefore push the analysis further by observing that our           
          conclusion accords with principles of Federal income taxation               
          developed by the Supreme Court in analogous situations.                     
          Specifically, our treatment of the Thompson settlement is                   
          analogous to the treatment of taxpayers who are held to have                
          received gross income, even though that income was paid directly            
          to a third party.  Petitioners cite Old Colony Trust Co. v.                 
          Commissioner, 279 U.S. 716 (1929), in which the Supreme Court               
          held that an employer’s payment of its employees’ income taxes              
          should be recognized as a taxable payment of additional                     
          compensation to the employee.54                                             
               Our conclusion is supported by the recent decision of the              
          Supreme Court in Commissioner v. Banks, 543 U.S. 426 (2005).                
          There, Mr. Banks settled an employment discrimination suit for              
          $464,000 and, pursuant to a contingent fee arrangement, paid his            
          attorneys $150,000 of that amount.  The Supreme Court held that             
          the $150,000 fee amount was includable in the gross income of Mr.           
          Banks, notwithstanding his preexisting obligation to pay                    




          54We note that the Thompsons did not report as gross income                 
          the first refund of $30,000, presumably because it was a refund             
          of tax they had previously paid.  Moreover, they did not claim              
          that amount as a deduction under sec. 212(3) when they endorsed             
          the check for that amount to DeCastro, as a partial payment on              
          account of his legal fees.  Although their failure to claim the             
          deduction operated as a tax detriment to the Thompsons, there is            
          no evidence that their forbearance was in any way related to the            
          deal with McWade.                                                           




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