The New York Times
March 30, 2004

 

Supreme Court to Review Tax Dispute Over Judgments

By LINDA GREENHOUSE
 

 

WASHINGTON, March 29 - People who file discrimination suits often arrange to pay part of any eventual judgment to their lawyers.

Under the standard contingent fee agreement, the lawyer's share goes directly to the lawyer and never comes into the client's possession. It is taxed as part of the lawyer's income.

But in the view of the Internal Revenue Service, the lawyer's portion is taxable as income to the client as well, a form of double taxation that several federal appeals courts have rejected.

On Monday, the Supreme Court granted the government's request to review the issue and settle the dispute.

The justices agreed to hear two cases that the I.R.S lost in recent months. In one, Commissioner of Internal Revenue v. Banks, No. 03-892, a man settled an employment discrimination case for $464,000, a sum that included a fee of $150,000 to his lawyer. The I.R.S. contended that the entire amount was income to the client, John W. Banks, II, a position that the Tax Court upheld when Mr. Banks challenged the determination.

But on appeal from the Tax Court, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled in his favor, holding that the lawyer's share could be excluded from the client's gross income.

In the appeals court's analysis, the two were in effect partners in a joint venture who shared a recovery and should each be taxed only on his separate part.

The second case, Commissioner of Internal Revenue v. Banaitis, No. 03-907, had similar facts. Sigitas J. Banaitis, a vice president of the Bank of California, sued that bank and the Mitsubishi Bank, which had acquired a controlling share, for interference with his employment agreement and wrongful discharge.

Under a settlement, a check for $3.9 million went directly to the plaintiff's lawyers under a contingent fee agreement, while Mr. Banaitis received $4.9 million for himself.

The I.R.S. said that the entire amount should be counted as gross income to Mr. Banaitis, a view rejected by the United States Court of Appeals for the Ninth Circuit, in San Francisco.

While the issue posed by these cases has simmered for years, it has acquired increasing prominence from the growing effect of the alternative minimum tax, which is intended to make sure that people with big incomes do not escape income taxes.

Ordinarily, lawyers' fees of this type can be deducted as a miscellaneous itemized deduction. But in calculating the alternative minimum tax, this category of deductions is disallowed. Because taxpayers who are subject to the alternative minimum tax must pay that tax if it is higher than their income tax would be under the ordinary calculation, a growing number can no longer take the deduction.

A bill introduced in both houses of Congress earlier this month would exclude attorneys' fees from the gross income of successful plaintiffs in discrimination cases. Although the justices were advised of the bill, they evidently decided not to wait for Congress.