Jerry and Patricia A. Dixon, et al. - Page 134

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          approximately one-third of his total recovery to his lawyers.55             
          We read the Supreme Court’s opinion in Banks as confirming and              
          applying the general principle that the portion of a settlement             
          that is dedicated to the payment of the plaintiff’s attorney’s              
          contingent fee is still regarded as received by the plaintiff               
          even though he is not expected or entitled to retain it.                    
               Our conclusion is guided also by the fact that the Court of            
          Appeals has specifically directed us to provide the equivalent of           
          the Thompson settlement as a sanction against respondent.  We do            
          not believe that the Court of Appeals contemplated the                      
          application of this aspect of the Thompson settlement in the way            
          that respondent urges, that is, as a 20-percent reduction in                
          proposed deficiencies, together with the hollow requirement that            
          respondent reimburse the many other affected petitioners for                
          attorney’s fees that in fact they never incurred.  If we did so,            


          55We note that in Kenseth v. Commissioner, 114 T.C. 399                     
          (2000), affd. 259 F.3d 881 (7th Cir. 2001), a majority of this              
          Court upheld respondent’s contention that the taxpayers were                
          chargeable with the receipt of gross income on the portion of a             
          settlement that was used to pay their attorney under a contingent           
          fee arrangement.  In Kenseth, the taxable year was 1993, the                
          taxable year for which, in the matter at hand, respondent                   
          contends that we should disregard as a formality the Thompsons’             
          receipt of the second refund they used to pay their attorney.               
               We observe that our hewing to the form of the transaction as           
          generating refunds of tax and interest to the Thompsons obviates            
          any argument by petitioners that the Thompsons received a tax               
          benefit in not being required to report as gross income the                 
          receipt of the refund of tax that enabled them to make their                
          first installment payment of DeCastro’s attorney’s fees.                    




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