T.C. Memo. 1998-364
UNITED STATES TAX COURT
JAMES T. SINYARD AND MONIQUE T. SINYARD, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11056-96. Filed October 7, 1998.
David P. Pearson and Paul W. Markwardt, for petitioners.
Mary E. Dean, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
SWIFT, Judge: Respondent determined a deficiency in
petitioners’ Federal income tax for 1992 in the amount of
$115,679.
The issue for decision is whether $252,608, among other
funds, awarded in class action lawsuits is excludable from
petitioner James T. Sinyard's income.
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Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 1992. References to
petitioner are to James T. Sinyard.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
At the time the petition was filed, petitioners resided in
Scottsdale, Arizona.
In 1989, petitioner joined two class action lawsuits pending
in the U.S. District Court for the District of Minnesota (namely,
Glass v. IDS Fin. Servs., Inc., Civ. No. 4-89-76 (Glass), and
Stephens v. IDS Fin. Servs., Inc., Civ. No. 4-89-115 (Stephens).
The law firm of Winthrop and Weinstine represented the class
plaintiffs.
In the original and amended complaints in Glass and in
Stephens, it was alleged that IDS Financial Services, Inc., IDS
Life Insurance Co., and IDS Financial Corp. (IDS): (1) Engaged
in a pattern and practice of age discrimination against older
division managers employed by IDS in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202,
81 Stat. 602, the Employee Retirement Income Security Act of 1974
(ERISA), Pub. L. 93-406, 88 Stat. 829, and State law; (2) imposed
illegal chargebacks against its division managers; and (3)
intentionally inflicted emotional distress on certain of its
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employees; and relief was requested in the form of, among other
things, punitive damages and attorney's fees.
At the time the classes closed in Glass and Stephens, a
total of 32 class plaintiffs had joined in the lawsuits.
ADEA class actions generally constitute opt-in class
actions and, after closure of the class, only plaintiffs who have
already elected to do so may be part of the class. The Glass and
Stephens actions both constituted opt-in class actions of which
petitioner was an opt-in member.
The class plaintiffs in the Glass and Stephens actions,
including petitioner, entered into contingency fee agreements
with Winthrop and Weinstine under which it was provided that the
class plaintiffs would be obligated to reimburse Winthrop and
Weinstine for out-of-pocket expenses and to pay Winthrop and
Weinstine attorney's fees on a contingency fee basis. The
agreements provided that out-of-pocket expenses incurred during
pendency of the actions would be billed by Winthrop and Weinstine
to the class plaintiffs on a monthly basis and fees due Winthrop
and Weinstine under the contingency fee agreements would be
billed at the conclusion of the actions.
Under the specific contingency fee agreement that petitioner
herein entered into on September 18, 1989, with regard to payment
of attorney's fees, it was provided, among other things, as
follows:
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in the event of a recovery, Winthrop and Weinstine will
be paid one-third (1/3) of the monetary amount obtained
in the lawsuit, whether by settlement or jury award.
and
In the event that an award of attorney's fees is
received by you as a plaintiff, then that award will be
considered as part of your total recovery with one-
third of the amount to be paid to Winthrop and
Weinstine and the remainder to be retained by you.
Under May 29, 1990, amendments to the contingency fee
agreements, it was provided that the amount of attorney's fees
would be "determined from the total monetary award actually
received by each plaintiff."
Correspondence from Winthrop and Weinstine to class action
plaintiffs dated October 2, 1989, stated:
Any court-awarded attorney's fees would be part of your
recovery from which the contingent fee will be
calculated.
Correspondence from Winthrop and Weinstine to class action
plaintiffs dated May 24, 1990, stated:
There are also some other categories of damages
asserted by all plaintiffs collectively. The first of
these is attorney's fees. Whether proceeding on a
contingent basis (as we are here) or on an hourly
basis, the prevailing plaintiffs in an employment
discrimination case are entitled to receive an award of
attorney's fees.
and
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After considering these various matters, the Steering
Committee has unanimously recommended to their fellow
plaintiffs that attorney's fees, sanctions, costs and
disbursements and similar awards which are not
individualized to any particular plaintiff should be awarded
equally on a pro rata basis to every plaintiff. For
example, if the plaintiffs collectively receive a $3,200,000
award for attorney's fees for prevailing in the action, then
each individual plaintiff would be entitled to $100,000 of
that award.
During pendency of the Glass and Stephens class actions,
Winthrop and Weinstine mailed routine billings to class members.
These billings detailed the nature of out-of-pocket legal
expenses incurred.
The amount of out-of-pocket expenses that, during the
litigation, were billed, charged to, and paid by individual class
plaintiffs varied depending on, among other things, financial
circumstances of the individual plaintiffs.
During pendency of the class actions, petitioner paid $4,050
to Winthrop and Weinstine in reimbursement of out-of-pocket
expenses incurred by Winthrop and Weinstine.
On or about April 16, 1990, a motion by the U.S. Equal
Employment Opportunity Commission (EEOC) to intervene in the
Glass and Stephens class actions was granted. Therein, EEOC
sought a permanent injunction against IDS to prohibit IDS from
engaging in any further discrimination against its employees on
the basis of age. The EEOC also sought an order requiring IDS to
institute and carry out policies, practices, and programs to
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provide equal opportunity for individual employees of IDS age 40
and older.
The injunctive relief sought by EEOC was prospective in
nature and intended to benefit all employees of IDS including
employees who were plaintiffs in the Glass and Stephens class
actions. Intervention by EEOC in the Glass and Stephens class
actions enhanced the merits of the class action lawsuits against
IDS.
Legal services of Winthrop and Weinstine on behalf of the
class action plaintiffs complemented the legal services of EEOC’s
attorneys, and vice versa.
On November 21, 1991, in the Glass and Stephens class
actions, the District Court granted partial summary judgment in
favor of IDS and against the class action plaintiffs dismissing
certain breach of contract, ERISA, and tort claims made against
IDS. Some of the legal services performed by Winthrop and
Weinstine prior and subsequent to November 21, 1991, were
attributable to the advancement of plaintiffs' contract and ERISA
claims.
In early August of 1992, a comprehensive settlement in the
Glass and Stephens class actions was entered into in which IDS
agreed to pay $35 million to resolve all remaining claims
relating to the above class actions, including claims for
litigation costs and attorney's fees.
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On August 26, 1992, the District Court approved the terms of
the comprehensive settlement.
Under terms of the settlement, the parties agreed and
stipulated that (based on the total settlement amount of $35
million to be awarded to the class plaintiffs) the amount of
attorney's fees owed to Winthrop and Weinstine was $11,166,666
(one-third of the total settlement amount after deduction of out-
of-pocket expenses).
The calculation under the settlement agreement of attorney's
fees in the amount of $11,166,666 used the same formula for the
calculation of attorney's fees that was specified in the
contingency fee agreements that the class plaintiffs had entered
into with Winthrop and Weinstine (namely one-third of the total
settlement amount after deduction of out-of-pocket expenses).
Pursuant to the settlement, out-of-pocket expenses in the
total amount of $1.5 million were first deducted from the total
award of $35 million. One-third of the $33.5 million balance of
the $35 million award was then allocated to lost wages of the
class plaintiffs; one-third of the $33.5 million balance was
allocated to tort claims of the class plaintiffs; and one-third
of the $33.5 million balance was allocated to attorney's fees.
With respect to the portion of the settlement award
allocated to lost wages of the class plaintiffs, IDS issued
separate checks directly to the individual class plaintiffs from
which Federal and State income taxes were withheld.
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With respect to the portions of the settlement award
allocated to tort claims of the class plaintiffs and attorney's
fees, IDS issued a single check directly to Winthrop and
Weinstine in the total amount of $23,783,333, of which
$12,616,666 represented the portion allocated to tort damages and
$11,166,666 represented the portion allocated to attorney's fees.
The total proceeds from this check were deposited into a trust
account on behalf of the class action plaintiffs.
In the instant case, the parties have stipulated that the
$862,906 that petitioner received under the above settlement is
allocable as follows:
$273,573 ---
Back wages and taxable as ordinary income;
$109,429 ---
Tort damages and excludable from income;
$164,144 ---
Tort damages and includable in income;
$ 63,152 ---
Attorney's fees attributable to tort
damages excludable from income and
therefore also excludable from income;
$252,608 --- Attorney's fees attributable to taxable
portion of funds received and the tax
treatment of which is in dispute herein.
On their 1992 individual joint Federal income tax return, of
the total $862,906 in funds that was received from IDS on
petitioner’s behalf, petitioners did not report as income the
$252,608 portion of the funds that was attributable to attorney's
fees allocable to the taxable portion of the funds received.
On audit, respondent determined that the $252,608 relating
to attorney's fees constituted taxable income to petitioners and
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is deductible to petitioners only as a miscellaneous itemized
deduction under section 67.
OPINION
Attorney's fees and costs awarded to prevailing parties in
litigation generally are treated as received by the parties, not
by the attorneys, and as items of taxable income to the
prevailing parties. See Alexander v. Commissioner, 72 F.3d 938,
946-947 (1st Cir. 1995), affg. T.C. Memo. 1995-51; Baylin v.
United States, 43 F.3d 1451, 1455 (Fed. Cir. 1995); Bagley v.
Commissioner, 105 T.C. 396, 418-419 (1995), affd. 121 F.3d 393,
395-396 (8th Cir. 1997); Estate of Gadlow v. Commissioner, 50
T.C. 975, 979-980 (1968); Petersen v. Commissioner, 38 T.C. 137,
151-152 (1962); Coady v. Commissioner, T.C. Memo. 1998-291; Hayes
v. Commissioner, T.C. Memo. 1997-213; Hardin v. Commissioner,
T.C. Memo. 1997-202; Martinez v. Commissioner, T.C. Memo.
1997-126.
Also, taxpayers generally are treated as realizing taxable
income when their expenses are paid by another. Sec. 61;
Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955). The
Supreme Court in Old Colony Trust Co. v. Commissioner, 279 U.S.
716, 729 (1929), stated that "The discharge by a third person of
an obligation to him is equivalent to receipt by the person
taxed." See also United States v. Boston & Me. R.R., 279 U.S.
732, 734 (1929).
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In ADEA cases, it is established that only the prevailing
parties, not the parties' attorneys, have standing to seek
attorney's fees. Benitez v. Collazo-Collazo, 888 F.2d 930, 933
(1st Cir. 1989); Soliman v. Ebasco Servs., Inc., 822 F.2d 320,
323 (2d Cir. 1987); Brown v. General Motors Corp., 722 F.2d 1009,
1011 (2d Cir. 1983); Rainsbarger v. Columbia Glass & Window Co.,
600 F. Supp. 299, 301-302 (W.D. Mo. 1984).
We recognize that there is case law treating amounts
received in litigation to cover attorney's fees as not
constituting taxable income. In Cotnam v. Commissioner, 263 F.2d
119 (5th Cir. 1959), affg. in part and revg. in part 28 T.C. 947
(1957), the taxpayer entered into a contingency fee agreement
with her attorneys under which the taxpayer agreed to pay her
attorneys 40 percent of any funds recovered. In Cotnam, we held
that the contingency fee agreement did not transfer any interest
in the judgment to the attorneys, and we held that the attorney's
fees that were awarded were to be included in the taxpayer's
income. Cotnam v. Commissioner, 28 T.C. at 954.
The Court of Appeals for the Fifth Circuit reversed and held
that under Alabama law the effect of the contingency fee
agreement was to establish in favor of the attorneys an equitable
lien on 40 percent of the funds recovered, and the Court of
Appeals concluded that the portion of the funds allocated to
attorney's fees was to be treated as owned by the attorneys, not
by the taxpayer, and therefore that the funds allocated to
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attorney's fees did not constitute income to the taxpayer.
Cotnam v. Commissioner, 263 F.2d at 125, citing 46 Ala. Code sec.
64 (1940).
In Davis v. Commissioner, T.C. Memo. 1998-248, we followed
the Court of Appeals opinion in Cotnam but only because the same
Alabama law and the same appellate venue were involved as in
Cotnam. See Golsen v. Commissioner, 54 T.C. 742 (1970), affd.
445 F.2d 985 (10th Cir. 1971); see also In re Hamilton, 212
Bankr. 384 (Bankr. M.D. Ala. 1997), applying Alabama law and
following Cotnam.
Respondent disagrees with the Court of Appeals for the Fifth
Circuit, and respondent continues to assert that, as we held in
Cotnam, notwithstanding the peculiarities of State law, under
contingency fee agreements attorneys do not acquire ownership of
those portions of funds recovered in lawsuits allocable to
attorney's fees, and the attorneys’ clients are taxable on the
full amount of the funds recovered in spite of any lien the
attorneys may have thereon.
In this case, petitioner resided in Arizona when he filed
his petition herein. The parties, however, have not cited any
provision of Arizona statutory law, and we have found none, that
pertains to the legal rights of Arizona attorneys in monetary
awards recovered on behalf of their clients.
Decisions by Arizona courts have addressed this issue only
to a limited extent. In Skarecky & Horenstein, P.A. v. 3605 N.
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36th St. Co., 825 P.2d 949, 951 (Ariz. Ct. App. 1991), it was
held that under Arizona Rules of Professional Conduct attorneys
are not permitted to acquire proprietary interests in funds
recovered on behalf of their clients until after the judgments
are rendered. 17A Ariz. Rev. Stat. Sup. Ct. Rules, 42 Prof.
Conduct, ER 1.8(j)(1985); see also State Farm Mut. Ins. Co. v.
St. Joseph's Hosp., 489 P.2d 837, 840-841 (Ariz. 1971), which
held that Arizona attorneys have no right to attorneys' liens
against funds recovered on behalf of their clients until after
judgments are rendered or settlements are entered into.
It thus appears that, in Arizona, attorneys do not have the
same substantive rights in funds recovered on behalf of their
clients as do attorneys in Alabama. In Arizona, the total funds
recovered constitute property of the clients. Based on the
foregoing, this case is distinguishable from Cotnam v.
Commissioner, supra, decided by the Court of Appeals for the
Fifth Circuit.
In the Glass and Stephens class actions, the documentation
is extensive to the effect that petitioner was entitled to and
received an award of $862,906, one-third of which was then used
to pay the $273,573 portion of the attorney's contingency fees
for which petitioner was obligated.
Petitioners rely on Eirhart v. Libbey-Owens-Ford Co., 726
F. Supp. 700 (N.D. Ill. 1989), in which it was held that the
defendant need not file information returns with respondent
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reporting as taxable income the portion of funds awarded that was
allocable to attorney's fees. The court based its holding on a
common fund theory that would appear to be applicable only to
opt-out class actions in which, as of the time fees are awarded,
not all members of a class have become identified or
contractually obligated to compensate the attorneys who perform
legal services for the members' benefit. This may occur where
members of a class are unknown until the conclusion of the
lawsuit and in opt-out class actions.
In opt-out class actions, persons must affirmatively decline
to be a member of the class or they are automatically members of
the class. In these opt-out class actions, there may be policy
reasons to treat funds recovered and used to pay attorney's fees
as nontaxable to the class members (namely, additional members of
the class may later be identified and held responsible for a
portion of the legal fees).
On the other hand, in opt-in class actions such as the Glass
and Stephens class actions against IDS, members must
affirmatively join the class to be considered class members. The
consequence of not specifically joining opt-in class action is
that the person not joining the class is not entitled to share in
the funds recovered by settlement or judgment.
Thus, in the opt-in class action lawsuits against IDS, when
the class closed, all class plaintiffs were identified, and
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current and former employees of IDS who did not join were
notified that they were not entitled to share in any recovery.
Petitioner asserts that the attorney's fees were not awarded
to him personally, but rather that they were awarded directly to
Winthrop and Weinstine. Petitioner points to the fact that
Winthrop and Weinstine was the sole payee on the $23,783,333
check that included the portion of the funds recovered allocable
to attorney's fees, and petitioner argues that under ADEA an
award of attorney's fees is authorized directly to the
plaintiffs' attorneys.
We note that the $23,783,333 check included the $12,616,666
portion of the award allocated to tort damages awarded to the
class action plaintiffs and that the total amount of this check
was deposited into a trust account in favor of the class action
plaintiffs. Presumably, if the class action plaintiffs had no
interest in the portion of the funds allocable to attorney's
fees, two checks would have been requested, and each check would
have been deposited into separate accounts -- one for the class
action plaintiffs in the amount of $12,616,666 representing the
tort damages received and one for Winthrop and Weinstine in the
amount of $11,166,666 representing the attorney's fees.
The relevant documentation in the Glass and Stephens class
action lawsuits against IDS repeatedly acknowledges that
attorney's fees would be owed by the class plaintiffs and that
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amounts allocated and to be used to pay attorney's fees were to
be awarded to the class plaintiffs, not to the attorneys.
Petitioners argue that because the class action lawsuits
provided benefits to persons other than the class plaintiffs, the
attorneys acted as private attorneys general. We note that
Winthrop and Weinstine never sought relief on behalf of unnamed
plaintiffs. Injunctive relief on behalf of all employees of IDS
was sought by the EEOC. Correspondence mailed by Winthrop and
Weinstine to potential class members explained that employees of
IDS not joining the class would not receive any damages. It was
EEOC, not Winthrop and Weinstine, that requested broader relief
that would extend beyond the class plaintiffs.
In summary, the $252,608 portion of the total award received
by petitioner from IDS in the class action lawsuits that is
allocable to attorney's fees and that is in dispute herein is to
be included in the taxable income of petitioner.
Decision will be entered
for respondent.