Calling Arliss Michaels

On November 1, the Supreme Court heard oral arguments in the cases of Commissioner v. Banks and Commissioner v. Banaitis. (The Circuit Court opinions in the two cases can be found here and here.) Two revenue rulings issued by the Service this week highlight the importance of these two cases.

Both Banks and Banaistis address the question of whether that portion of a settlement or award paid to the claimant's lawyer in the form of a contingent fee is part of the claimant's gross income. The position of the Service is that the contingent fee portion of the settlement is gross income and is merely deductible by the claimant. If the Service's position is sustained, any legal fee paid in the course of a lawsuit concerning, for instance, the breach of an employment contract, will generally get added back into income when computing the claimant's liability for alternative minimum tax. Since such fees are not deductible for alternative minimum tax purposes, they are, in essence, not deductible at all.

The issue before the Court is vividly summarized by Alexis Garamfalvi of the Medill News Service of Northwestern University as follows:

Plaintiffs sitting across wide conference room tables from a flotilla of lawyers probably don't always consider how large a bite Uncle Sam will take out of the amount they are being offered to settle a lawsuit. Even fewer of them consider that they may be taxed on a large chunk of the settlement they never see - the perhaps 33 percent going to their lawyer. Of course, their lawyer is paying taxes on that amount too. So, trial lawyers aren't the only beneficiaries of our increasingly litigious society. Uncle Sam is smiling too.

Garamfalvi illustrates the problem by pointing out that if the Service prevails, Banaitis, who settled an employment claim against the Bank of America for $8.73 million, would be left with only $1.98 million, or 22.7 percent of the settlement amount.

In Rev. Rul. 2004-109 the Service addressed the question of whether upfront bonuses for signing or ratifying an employment contract are wages for purposes of FICA and FUTA. Two specific situations were considered. In one, a baseball prospect was given a "signing" bonus. To earn the bonus, the player needed only to show up for spring training. In the second example, various union members who were employees at the time a collective bargaining agreement was ratified became entitled to a "ratification" bonus. In both cases, the bonuses were not contingent upon whether the bonus recipients subsequently rendered services.

Rev. Rul. 2004-109 concluded that both sorts of payments constitute remuneration for employment and were thus subject to FICA and FUTA. The Service explicitly revoked Rev. Rul. 58-145, 1958-1 C.B. 360, which had held that a signing bonus did not constitute remuneraton for services and thus did not constitute wages for withholding tax purposes.

In Rev. Rul. 2004-110 the Service addressed the backend of the employment relationship. There, an employment contract for a period of several years had a provision that it could be terminated with the mutual agreement of the parties. The parties agreed that the employee would accept a payment from the employer in consideration of his agreement to cancel the contract before the expiration of the stated term. The ruling holds that the payment was part of the remuneration paid for the employee's employment because "[t]he employee [did] not provide clear, separate, and adequate consideration for the employer’s payment that is not dependent upon the employer-employee relationship and its component terms and conditions." Thus the payment was ordinary income, not capital gain income, and was subject to withholding, FICA, and FUTA.

While the precise questions addressed in the two revenue rulings are different from the question before the Court in Banks and Banaistis, they will frequently pop up in similar situations.

For instance, pro athletes typically have professional agents negotiate their contracts for them. Under Rev. Rul. 2004-109, all of the remuneration under those contracts are wages subject to withholding, FICA, and FUTA. If the Service prevails in Banks and Banaistis, as a practical matter, pro athletes will not be able to deduct the consideration paid to their agents since virtually all of these athletes are subject to the alternative minimum tax. Of course, this dramatically increases the transactional costs that they incur in the course of the negotiation.

In the case of "termination" payments, a similar warping of the negotiation process takes place, putting the employee at a severe disadvantage when negotiating the end of an employment relationship gone sour.