Judicial Activism Is Not the Solution to the Attorney's Fee Problem

Posted: 1 Nov 2002  

Brant J. Hellwig

Washington and Lee University - School of Law

Abstract

The report responds to criticism of the Tax Court's decision in Biehl v. Commissioner, in which the court determined that contingency fees paid to the taxpayer's attorney in employment litigation did not constitute an above-the-line deduction under section 62(a)(2)(A). The report examines the relevant statutes, regulations, and legislative history and concludes that the Tax Court reached the correct decision. Professor Hellwig further contends that had the Tax Court interpreted section 62(a)(2)(A) to grant above-the-line status to the attorney's fees in this case to avoid the disallowance of the miscelleaneous itemized deduction for attorney's fees under the alternative minimum tax, the court would have assumed an impermissible legislative role.

Suggested Citation

Hellwig, Brant J., Judicial Activism Is Not the Solution to the Attorney's Fee Problem. Tax Notes, Vol. 97, No. 5, November 4, 2002. Available at SSRN: https://ssrn.com/abstract=347501

Brant J. Hellwig (Contact Author)

Washington and Lee University - School of Law ( email )

Sydney Lewis Hall
Lexington, VA 24450
United States

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