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Misassigning Income: The Supreme Court and Attorneys' Fees


Stephen B. Cohen


Georgetown University Law Center


Virginia Tax Review, Forthcoming
Georgetown Law and Economics Research Paper No. 799964
Georgetown Public Law Research Paper No. 799964

Abstract:     
This past term's Supreme Court decision in Commissioner v. Banks and Commissioner v. Banaitis distorts foundational principles, known as assignment of income law, which help identify the person who must report income for federal tax purposes. The Court held that assignment of income principles requires a plaintiff to report as income the portion of a recovery paid to the plaintiff's attorney as a contingent fee. As a result, the plaintiff is taxed at excessively high rates, which may in some cases equal or exceed a confiscatory 100 percent. Taxing the plaintiff on the attorney-fee portion of a recovery also undermines the objective of federal fee-shifting statutes, which is to enable a prevailing plaintiff to act as a private attorney general by employing an attorney without cost. Although recent legislation changes the result in the future for specified categories of litigation, including a wide variety of civil rights and employment claims, there remain significant classes of cases, including nonphysical torts, physical torts with punitive damages, and environmental statutes with fee-shifting provisions, to which this recent legislation does not apply and in which plaintiffs will continue to be taxed unfairly under the Court's decision.

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Date posted: September 9, 2005  

Suggested Citation

Cohen, Stephen B., Misassigning Income: The Supreme Court and Attorneys' Fees. Virginia Tax Review, Forthcoming; Georgetown Law and Economics Research Paper No. 799964; Georgetown Public Law Research Paper No. 799964. Available at SSRN: http://ssrn.com/abstract=799964

Contact Information

Stephen B. Cohen (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9068 (Phone)
202-662-9444 (Fax)
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