- 97 - 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.Page: Previous 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 Next
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