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RICHARD
M. COLOMBIK
JD, CPA
RICHARD M. COLOMBIK
& ASSOCIATES, P.C.
PERSONAL
INJURY LAWYERS GET TAX BREAK
In
James F. Boccardo vs. Commissioner, 56 F.3d 1016 (9th. Cir. 1995)
the 9th Circuit Court of Appeals modified well established case law
and benefited personal injury lawyers. The 9th Circuit Court of
Appeals held that all preparation and trial costs paid by the Boccardo
personal injury firm, were deductible in the year paid, even through
the cases might be settled years down the road. It might not seem
like a big change for the public, but there are many ramifications for
allowing the deductibility of expenses that might later be repaid.
This article will analyze the Boccardo case and its meaning.
HISTORY
The
Boccardo firm initially filed a case in the Court of Claims, Boccardo
vs. United States 12 Ct. Cl. 184 (1987) under a net fee agreement.
The firm, in 1987, would receive its net fees, plus the client would
reimburse the firm for all expenses and costs of such case. In
Boccardo vs. United States, the Court of Claims ruled that ?just
as the case belongs to the client, so too does any recovery. So
merely because the plaintiff must look to the recovery for reimbursement,
does not mean it is also looking to the client. Id at 187. Current deduction
for litigation expenses advanced was denied.
In
Canelo vs. Commissioner, 53 TC 217 (1969), Aff?d. 447 F.2d 484
(9th Cir. 1971) the Appellate Court addressed the current deductibility
of litigation costs, advanced under a contingent fee agreement.
The fee agreement at issue provided for repayment of costs solely from
the amount recovered in such cases. Fees were based upon a percentage
of recovery. The court in Canelo concluded that costs were
not deductible because they constituted loans or advancements which
the firm fully intended to be repaid. The firm had carefully screened
its cases and had good ?hopes? of recovery of the costs, even though
its rights to recover were contingent upon winning or settling the cases.
The court further held that there was a distinction between a law firm
advancing fees and an ordinary business person advancing fees or costs.
An expenditure by a law firm was on behalf of a particular client to
pursue a client?s claim. In reality, the Appellate Court held
that the expenses and costs were the client?s expenditures not the
attorney?s. Canelo at 225.
BOCCARDO
REVISITED
Mr.
Boccardo went back to his law firm and contacted a tax attorney.
On contacting tax counsel, they discussed that they had lost their case
based upon a net fee agreement. On suggestion of tax counsel,
the fee agreement was modified to a ?gross fee? agreement.
The new agreement provided the following:
The
law firm?s fee shall be 33-1/3% of the gross sum recovered in the
event that said claim is settled before said suit is filed, otherwise
40% of said gross sum.
In
the event there is no recovery in said claim, said law firm shall receiving
nothing for its services, or for costs paid.
Should client discharge such said law
firm for any reason, client, upon demand, shall pay to said law firm
reasonable value for its services to date of discharge.?
The
Boccardo firm then proceeded to again currently deduct its client costs
and advances. Subsequently, the Tax Court again reviewed cost
deductions within a net fee agreement.
TAX COURT
IN HODGES
In
Clifton A. Hodges vs. Commissioner, 1993 TCM 316, the issue again
arose of whether the petitioner, an attorney, was entitled to a deduction
for fees advanced on for costs and expenses incurred regarding litigation
costs. The petitioner testified that amounts claimed as fee advances
represented costs for either transcripts, filing fees or other expenses
advanced on behalf of contingency clients. The counsel at issue
conceded that he would recover the amounts advanced when the cases
were successfully settled. The Tax Court, citing Canelo
and Boccardo, held that they had previously ruled that fees advanced
were not deductible. Accordingly, the court ruled against the
taxpayer, and litigation costs advanced were not deductible when paid.
TAX COURT
IN BOCCARDO II
The
Tax Court again ruled against deductibility in Boccardo vs. Commissioner,
56 F.3d 1016 (9th Cir. 1995) upon two premises. The first premise
was the substance over form doctrine. This doctrine provides the
form of an agreement, or the form of a transaction does not control
its substance. To permit the nature of a transaction to be disguised
by mere formalisms, which exists solely to alter tax liabilities, would
seriously impair the effective administration of the tax policies of
Congress. The court cited Commissioner vs. Court Holding,
34 U.S. 331, 334 (1945). Additionally, the court cited the California
Rules of Professional Conduct, pursuant to IRC §162.
The
California rules, Rule 5-104, prohibit an attorney from paying, agreeing
to pay, guaranteeing, representing or sanctioning the representation
that he\she will pay such costs incurred by or for a client, except
(1) with the consent of the client, that the costs be repaid from funds
collected or to be collected for the client, or (2) that the costs be
advanced in prosecuting or defending a claim or action or otherwise
protecting or promoting the client?s interest. The recovery,
according to the court belongs to the client not the firm. Therefore,
the reimbursement of costs come from the client recovery.
The
decision by the Tax Court in effect ruled that under IRC §162,
a business expense deduction was not allowed for advanced client litigation
costs incurred by the firm pursuant to its fee agreement in the year
paid. The fees and costs would only be deductible in the year
the case was settled, or otherwise disposed of.
BOCCARDO
APPEAL
The
9th Circuit Court of Appeals, reversed the Tax Court and held that litigation
costs and advances could be deducted when paid in a gross fee agreement.
The court initially cited the favorable United State Supreme Court ruling
of Gregory vs. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267
(1935). It has long been established that the taxpayer has a right
to arrange his affairs so as to minimize the taxes he pays. The
court noted the firm, on advice of tax counsel, adopted different contractual
terms which resulted in a different economic effect for the law firm
under the net fee contracts, rather than gross fee contracts.
The court further discussed that the case cannot be governed by automatic
application of the prior cases which were decided on net fee contracts,
not gross fee contracts.
The
9th Circuit Court noted that the Tax Court?s analysis of the California
Rules of Professional Conduct, 5-104, now 4-210 (A), was inappropriate
relative to an analysis of federal law. Federal law provides pursuant
to IRC §162(a)
the allowance of a deduction for all ordinary and necessary business
expenses paid or incurred during a taxable year in carrying on any trade
or business. Whereas, Internal Revenue Code §162(c)(2) disallows any deduction if
such payment is illegal under any law of the United States, or any law
of a State (but only if such State law is generally enforced), which
subjects the payor to criminal penalty or the loss of license or privilege
to engage in a trade or business.
On
appeal the plaintiff argued that gross fee contracts do not ?violate
a law of the United States or a State law that is generally enforced
which subjects the payor to a criminal penalty, or the loss of a license,
or takes away the privilege of engaging in a trade or business?.
This created a perplexing issue as Mr. Boccardo was licensed both in
the District of Columbia, as well as the State of California.
The District of Columbia, did not have any ethical issue relative to
the fee agreement. The California Rules of Professional Conduct
did, however, retain the rule related to and enunciated by the Tax Court.
The
Appellate Court cited the California statute and noted the statute does
nothing to prohibit a lawyer from paying expenses, and it does allow
an attorney to advance funds if they will ultimately be collected
from the client, or as a result of the representation. The court
noted that the rule against an attorney bearing the cost of litigation
was a relic of old English rules against barratry, champerty and maintenance.
Further, a federal class action suit, Rand vs. Monsanto Company,
926 F.2d 596,600 (7th Cir. 1991) held that state ethics rules against
attorneys picking up the costs in litigation had been invalidated as
frustrating the Federal Rules of Civil Procedure. Id at 600,601.
Therefore, the 9th Circuit ruled that the firm?s arrangement does
not violate a law of the United States and that the Rules of Professional
Conduct approved by the California Supreme Court may be treated as a
State law though the characterization would be arguable. Further,
no criminal penalty for rules violation was present. Theoretically,
the court conceded that the contract could result in an attorney?s
license being revoked, but there was no evidence presented that the
California Attorney?s Commission was attempting to move forward with
such argument, nor was there any general enforcement of this prohibition.
Thus, the payments were not illegal, and the court was not prohibited
by IRC §162(c)
of eliminating the payment?s deductibility.
The
federal rules had not been violated Boccardo?s firm paying such fees
and costs. The court stated, ?the line of ethical inquiry pursued
by the Tax Court ends when it becomes apparent that the criteria set
by §162(c)
for the elimination of deduction have not been met. Therefore,
the court held that Boccardo incurred ordinary and necessary business
expenses in the payment of costs and charges in connection with the
client?s litigation. The Tax Court judgment was reversed, with
judgment entered for the taxpayer.
WHAT
ABOUT ILLINOIS LAW
Prior
Illinois rules, 5-103(b), provides while representing the client in
connection with a contemplated or impending litigation, a lawyer
shall not advance nor guarantee financial assistance to his client,
except that a lawyer may advance or guarantee the expenses of litigation,
including court costs, expenses of investigation, expenses of medical
examination and costs of obtaining and presenting evidence, provided
the client remains ultimately liable for such expenses. This
rule was repealed August 1st, 1990 and the subsequent Rule 1.8, Conflict
of Interest(d), reads: ... a lawyer shall not advance or guarantee financial
assistance to the client, except that a lawyer may advance or guarantee
the expenses of litigation, ... if (1) the client the remains ultimately
liable for such expenses, or (2) the repayment is contingent on the
outcome of the matter, or (3) the client is indigent. Therefore,
Illinois law seems to be in conformance with California law. Thus,
if an attorney properly restructures his contracts, it would appear
that the 9th Circuit ruling would be on point. There is an important
caveat. The ruling was in the 9th Circuit, not the 7th Circuit.
So far, no other circuit has ruled in favor of an attorney regarding
these tax ramifications. It is, however, expected that another
case will be forthcoming. If the case is not determined in favor
of the taxpayer, it would appear to present an ideal case for writ of
certiorari to ultimately be decided by the U. S. Supreme Court.
Richard M.
Colombik, JD, CPA, former chairman, ISBA Federal Taxation Council, elected
representative in the ISBA Assembly, liaison to the IRS district director,
Vice President of the American Association of Attorney-CPAs and Treasurer
of the Northwest Suburban Bar Association. Richard is also a published
author and frequent lecturer at various bar associations, civic groups,
professional organizations, radio and TV.
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