Trial Lawyers Expecting Treasury Department To Give Them $1.6 Billion Tax Break

Rob Port • July 14, 2010

U.S. Treasury Secretary Tim Geithner laughs during remarks by first lady Michelle Obama during her visit to the U.S. Treasury in Washington, July 7, 2010. REUTERS/Jason Reed (UNITED STATES - Tags: POLITICS)

First question: How is it that the Treasury Department can go ahead and give the trial lawyers a tax break that Congress didn’t pass?

Second question: Why on earth would we want to give a tax break to trial lawyers for filing speculative lawsuits? It would, in fact, be a subsidy for lawsuits not unlike the mortgage deduction on your income tax is a subsidy for home ownership. That mortgage deduction is one of the chief reasons why our country has had troubles with housing bubbles (unlike Canada which has no such tax deduction).

Can you imagine what a tax-subsidized lawsuit bubble would do to our economy? If anything, we need tort reform in this country to reduce the number of lawsuits filed every year. Not subsidies that will make it cheaper and easier to file lawsuits.

VANCOUVER, Canada (Legal Newsline) – The nation’s trial lawyer group, the American Association for Justice, revealed Tuesday that it expects the U.S. Department of Treasury to soon give its members a tax break on contingency fee lawsuits.

The tax break could be similar to proposed legislation that didn’t make it through Congress last year. That proposal, sponsored by U.S. Sen. Arlen Specter, D-Pa., would have allowed attorneys to deduct fees and expenses up-front for filing contingency fee lawsuits.

John Bowman, the Director of Federal Relations for the AAJ, said in response to a question from a state delegate regarding recruiting new members that an administrative order from the Treasury Department could come as soon as tomorrow, sources told Legal Newsline.

So, basically, our elected representatives didn’t pass this tax break but the trial lawyers are expecting to get it anyway through the actions of the unelected bureaucrats at the Treasury Department.

Carter Wood notes that Congress has been considering this legislation for some time and that the politicians have simply not moved it forward:

Congress has had ample opportunity to vote on legislation to change tax law as desired by the trial lawyers. Sen. Arlen Specter (D-PA) introduced S. 437 in February 2009, and Rep. Artur Davis (D-AL) introduced H.R. 2519 in May 2009. The committees of jurisdiction did not take up the legislation because it’s political poison and bad policy — stimulating more economy-sapping litigation. As the American Association for Justice’s top lobbyist, Linda Lipsen, told trial lawyers at the AAJ’s convention last summer in San Francisco, “You cannot have a stand alone bill to help lawyers … so we have to tuck it into something.”

Laws are supposed to be passed by Congress and signed by the President. If Congress doesn’t act, then a given piece of legislation shouldn’t become law. This is Civics 101.

But apparently things work different for the trial lawyers.

Tags: lawsuits, treasury department, trial lawyers

http://intensedebate.com/people/suitepotato suitepotato

I'm remembering that joke about 1,000 lawyers at the bottom of the ocean right now…

http://intensedebate.com/people/ORIGINAL_DINO ORIGINAL_DINO

As long as they're republican lawyers, make it 100,000.

Frank

Riiight. And the dumocrat lawyers are all nice guys that would never screw you over. GFY.
aelfheld

You must love slip-and-fall trial lawyers then, because they're just about each and every one Democrats.

http://intensedebate.com/people/mikemc1970 mikemc1970

The trial lawyers were BIG campaign donors to the president. This is about pay for play and it's Obamas turn to scratch their political back.
http://intensedebate.com/profiles/obbop obbop

"There's class warfare, all right, Mr. (Warren) Buffett said, but it's my class, the rich class, that's making war, and we're winning."
Lady_Attorney

It's not a big deal. These fees and costs should be treated as a normal business loss. Attorneys can invest thousands of dollars paying for experts, etc., for a case. Not winning a case does not make it frivolous. Why should an attorney be denied a tax break that any other business owner gets?
Stephen

The change is to correct an inequitable treatment of expenses. If a lawsuit is filed by a corporation, the filing fee paid to the Court, typically $150-$350, is immediately deductible in the year of payment as an expense. It makes sense. Litigation is a cost of doing business. The rules change only for contingency fee cases. The same filing fees which are decuctible for other businesses are not deductible in contingency fee cases until the case ends — sometimes years later. The defendants, typically insurance companies, stall and delay the case so that the financial harship to the plaintiff forces a settlement — often for less than the harm to the plaintiff. The inability to deduct the fees contributes the financial hardship.
Stephen

The proposal merely levels the playing field. A reasonable alternative would be to restrict business deductions for all litigants until after the litigation is resolved. No one would get the immediate deduction. It is a fairness issue. Why should big business and insurance companies with more resources than the plaintiff get the immediate deduction, but the plaintiff's attorney must wait years to take the deduction? And, the statement as to $1.6 billion is a red hearing. The deductions are eventually taken, one way or another. It might be 3 years from now, but is will be taken. The question is not whether it is a legitimate deduction. The question is when the deduction is available — in the year it is incurred like all other deductions, or artificially delayed. It is just a question whether the deduction is taken immediately, or in 3 years. So, the $1.6 billion is either paid today, or in 3 years

http://intensedebate.com/profiles/robport robport

The deduction will only be taken if the case is won. What the trial lawyers want is, essentially, subsidies for lawsuits.

Lady_Attorney

Which those on the right should be supporting. After all, trial lawyers provide jobs, which is the rationale behind tax breaks for businesses. Trial lawyers should be treated no different than any other small business.

http://intensedebate.com/profiles/robport robport

Heh…now that's a pretty audacious comments.

And how about all the jobs lost by businesses who could be spending their money on investment, growth and development but aren't because they're fending off frivolous lawsuits?

Lady_Attorney

Lawsuits that are totally frivolous end up getting dismissed, usually pretty early in the litigation process. The business can then take a deduction for its legal expenses.

By the way, I am not a plaintiff's trial attorney. About 90% of my clients are corporations and small businesses. But fair is fair. Plaintiff's attorneys are business people and they should have the same right to deductions that any other business has.
http://intensedebate.com/profiles/robport robport

Right. Because we all know the lawyers aren't making enough money.

We need fewer lawsuits in this country, not more.
Lady_Attorney

You guys are the ones who chided Obama for saying that people can make too much money. Everyone is free to make as much money as the free market allows except lawyers? What about Republican lawyers?

http://intensedebate.com/people/batobe Bat One

(T)rial lawyers provide jobs…

Trial lawyers are like the government in this regard. The "jobs" they provide don't create wealth. They merely take the wealth of others and redistribute it.

Lady_Attorney

By that logic anyone who provides a service doesn't create wealth, from your doctor to your barber.
http://intensedebate.com/people/batobe Bat One

The difference is I can choose to visit my doctor or get my hair cut or even cut my own hair. But if I am named as a defendant in a civil suit, I have no choice but to hire an attorney, whether that suit is frivolous or not.

Stephen

Not. The deduction can be taken at the end. It is not lost. In order to create the exception for contingency cases, the IRS deems the advance fo court costs to be a loan from the lawyer. So, if the case is won, the loan is repaid from the proceeds of settlement. If the case is lost, then the costs advanced can be deducted as a bad debt.

http://www.facebook.com/profile.php?id=1704306044 Carter Wood

So there's no expectation of repayment unless there's a victory? Why, that's champerty!

http://intensedebate.com/people/batobe Bat One

It is a fairness issue.

Fairness… the single most abused word in the liberal lexicon.

Here's a counter offer: First, if a plaintiff files a lawsuit and the sit is not successful, the plaintiff must pay both is own legal costs and all reasonable expenses of the defendant.

Second, let's do away with out of court settlements in non-criminal cases. No more filing frivolous lawsuits merely to prosper on the settlement. You file it, you see it through to the end.

THEN, we can talk about your precious tax deduction.

Lady_Attorney

Losers paying costs in the English system. It's not the American system. The reason this was not adopted was because the founders of American jurisprudence wanted to make the legal system accesible to everyone. So your first is not an option.

Unfortunately your understanding of settlements is not based on the reality. For contingency cases there is usually an insurance company defending one or more of the defendants. Insurance companys are not victims…they are very shrewd. THey keep a list of all the trial attorneys. They know which ones will take a case to trial and which ones are bluffing and they proceed accordingly. The insurance companies really have no incentive to settle unless they know their client is at fault and they want to avoid a possbly bigger jury verdict. Otherwise, their costs are about the same to take it to court and take their chances.

I stand by my position that the deduction is fair.

http://intensedebate.com/people/batobe Bat One

the founders of American jurisprudence wanted to make the legal system accesible to everyone.

But…but…but that's socialism, Ma'am. Surely you understand that you are implicitly imposing the cost of that universal access on every civil defendant. That hardly seems fair. And who are those ""founders of American Jurisprudence" anyway?

As for your position, while you are entitled to that, you are not, yet, entitled to the deduction.

Lady_Attorney

You're joking, right? It's socialism to have a legal system where the poor have the same access to the courts as the rich? The bottom line is that unless there is a statute to the contrary each party bears their own costs, which is a good thing for all Americans and one of the things that makes our legal system so great.

The deduction doesn't apply to what I do anyway.

Stephen

That is an interesting take. I've not been introduced to that notion. I did not know fairness was a partisan issue. I assumed everyone believed in fairness — except in love and war, of course. It would seem that an unfair act naturaly breeds a sense of injustice. Now, I learned early, and my children were taught, that life is not always fair — deal with it. But I would not teach my children to treat others unfairly.

http://intensedebate.com/people/batobe Bat One

Stephen, Perhaps you should take the time to look at things from the point of view of those of us who believe that "we do because we can" is not sufficient rationale for the intrusive expansion of government and the resulting loss of individual freedom, or that the Constitution was meant to restrict government, particularly the federal government, not individuals.

I didn't say that fairness is a partisan issue, nor have I suggested that fairness ought not to be a guiding principle for individual decisions and behaviors. But we aren't discussing individual behavior, or how either of us raised his children. But fairness, like beauty, is in the eye of the beholder, and while we all value both to one degree or another, both are clearly subjective.

Liberals us fairness like a broom, to sweep away the more practical reasoning of those who disagree, and a broomstick to beat them with if we remain adamant in our objections.

Its not fairness I object to, but the dishonesty with which the idea is used by those on the Left to get their way.

Incidentally, the second most misused word is "rights."

Stephen

I have no idea from where that came. No statement anywhere in any of these comments by anyone on either side of the discussion before us has advocated intrusion or expansion of government. You've never heard me say in any discussion anywhere that, "we do because we can." You need not say it because it is self-evident. None of us believe that, and none of us act on that premise.
Stephen

I readily agree that fairness is in the eye of the beholder — clearly subjective. That is exactly my point. Fairness is neither a liberal nor a conservative concept. Is your position that one group should be treated one way by the by the IRS, and another group is arbitrarily treated differently by the IRS. Look at my other comments, below. The rule which is the subject of the article was created by the IRS. It is not the result of congressional policy. The IRS created an arbitrary rule which works an inequity on a subjective basis. It gives an advantage to one group of litigants over another. The court system is supposed to be neutral. The IRS rule undermines that notion of neutrality. Forget the concept of fairness. Consider that everyone expects that all parties are supposed to be on equal footing in the court system. Perhaps not a pragmatic expectation, but none the less an expectation. Surely, you do not advocate that just because the IRS can arbitrarily favor one group of litigants, it should.
Stephen

Abstract does not equate to misuse. Now, misuse of the word "rights" may include for example, saying that all individuals have a "right" to a "fair" life. An obvious fallacy. That is not what has been presented by any of the discussion on this post. So, why do you raise it? "Rights" have nothing to do with the discussion. "Rights" are in fact a reasonable and even significant part of any discussion – assuming they are not contrived or made up. For example, I have a right to discriminate. We all discriminate every day. I just cannot discriminate for an unlawful reason. I have the right to discriminate to a great extent, and no one has a right to challenge discrimination unless there is a law against it. I agree that anyone who complains that his/her rights have been violated because I did not hire him/her because he/she is ugly has no legal basis for a claim. He/she may not consider that "fair". But, he/she has no basis for claims that any legally enforceable "rights" have been violated.
Stephen

However, there are many legally enforceable rights. Any argument promoting those legally enforceable rights is not misuse of the word. Again, I do not see that anyone has invoked any "rights" in this argument. The mere use of the word "rights" in promoting an argument does not become "misuse".

And, you posit that the LEFT uses "fairness" dishonestly to support their ideas. 2 Questions: 1) have I done that??? 2) Do you posit that the "RIGHT" does not??? Please respond, because I have indisputable examples of the other side using "rights" improperly in their arguments, including Beck, Palin and Coulter [nothing for rush -- he is smarter than those people].
Stephen

Now as to your summarily interjecting the characterization that the word "rights" is "misused", I am not certain as why that idea was thrown in. I've scanned all of the comments, including my own, and it does not appear that either side has maintained that the tax deduction is a right. But, since "rights" seem for some reason to be in play, they should not be trivialized. "Rights" are the basis for the initiation of the new world. Pilgrims came for their religious rights. The Declaration of Independence justified establishing this country upon the basis of certain inalienable rights. Of course, because our founding fathers won, they were heroic. Had they lost, they would have been traitors. That is a digression. The Constitution specifically articulated the rules of the country — and the first 10 amendments, the Bill of "Rights", specified many "rights." I grant you, "rights" are to some extent abstract.
Bat One

Stephen, When you have been here a bit longer, and experienced these sorts of discussions more, you'll find that they rarely stick precisely to the subject at hand, or the post that started the conversation. I was not suggesting that you have misused either "rights" or "fairness." Those were merely rhetorical asides, not with you in mind as much as others who read what we post here.

Its late, and I trained this evening and I'm sweaty, nasty, sore and tired. I'll try to pick this up again tomorrow.

NJK

Rob Port: do you understand the difference between an administrative regulation and a law?
Also, as mentioned above, not winning a case does not mean that it was frivolous. Let's say I'm hit by a drunk driver; I file suit, filing fees are paid, and we settle on the courthouse steps just before trial. I haven't "won" my suit; should I still just eat the filing fees, or should I be able to claim them?

http://intensedebate.com/profiles/robport robport

You're not paying the filing fees. Your client is. Let's be honest.

And Congress should set tax policy, not the Treasury Department. Congress writes laws. The executive branch, including the treasury, applies them.

That's how it's supposed to work. Even for trial lawyers.

Lady_Attorney

Again, it appears that you don;t even understand the debate. In a classic contingency case the plaintiff pays nothing unless the case is settled or won, so the Plaintiff is not paying the filing fees, or the expert witness fees, or the deposition fees, or any of the thousands of dollars that the trial attorney puts into preparing the case. If the attorney loses the plaintiff is out nothing. THe attorney is out thousands and cannot take a normal business loss deduction.

Smitty

I don't know what state you practice in, but in my state the contingency fee arrangement you describe is flat-out unethical. The attorney may advance fees and costs for the client, but the client remains ultimately responsible for payment. Allowing the attorney to pay fees and costs would allow the attorney to obtain a financial interest, other than his fee, in the client's claim and give rise to a potential conflict of interest, as in settling "cheap" to recover "his" expenses as opposed to going to trial. I realize that it is essentially fiction, but I didn't make the rules. Consequently, only when the client refuses to reimburse the attorney for costs and fees advanced would the attorney be "out" anything, since the attorney has a claim against the client. Litigation costs and fees would never be a normal business deduction for the attorney because they are not the attorney's cost of doing business, they are the plaintiff's cost of prosecuting his case. I think this Treasury ruling is going to conflict with professional ethical rules in some states.

Lady_Attorney

Yes, you are right. I didn't get into the technicalities of how the agreements work in practice. Here the trial attorneys never attempt to collect the fees (you know what happens if they do…the client reports them to the disciplinary committee just to create a headache), so for all intents and purposes they only get the fees/costs back if they prevail. The IRS rule would put the attorney in the uncomfortable position of having to pursue collection from the client to establish that the client lacks the ability to pay, thus creating the loss (and the complaint). But academically, it seems fair that the attorney can deduct this loss.

photog

FALSE
"Many people falsely believe if they lose the case they will not have to pay anything. Though they will not have to pay the attorney's fee, they will still be responsible for expenses their attorney incurred in pursuing their case. These fees might include medical reports, investigative services, expert witnesses, court costs and court reporter fees, etcetera."

And another source
"In most states, the Client must still pay the legal filing fees and/or other costs associated with the filing of the lawsuit." – http://www.contingencycase.com/index.php/faq#FAQ2

I could go on and on with many sources

Lady_Attorney

First off, your own source says, "IN MOST STATES." That means not all states follow that rule.

Second, what happens in practice is equally important. As I said in my earlier post, attorneys don't try to collect these fees from the client because usually the client can't pay, and if the attorney loses the case he has to decide whether to risk further pissing off the client and risk a disciplinary complaint or malpractice lawsuit. So in most cases the attorney is taking a loss that he cannot deduct for, which is unfair.

Stephen

Congress did not set this tax policy. This rule was created by the IRS by way of field service advice. The IRS position was challenged in the 9th Circuit case of Boccardo v. Commissioner. The 9th Circuit Court of Appeals actually ruled that under certain circumstances the deduction was proper. The IRS ignores that Court's ruling outside of the 9th Circuit. The 9th Circuit Court of Appeals made its decision premised upon the Tax Code. The IRS continues to disagree with that interpretation. Congress did not create the issue — the IRS did. The Treasury Department can fix it.

http://intensedebate.com/people/batobe Bat One

John Edwards… call your office.
Bat One

Here's a suggestion, since clearly you two aren't going to win any arguments here today: If the deduction thing doesn't work, why not have your insurance broker try to include a rider on your E&O policy that would at least partially reimburse your firm for the costs you're seeking to deduct from your taxable income when you lose. At least the premium would be deductible.

Lady_Attorney

I wasn't here to win any arguments, and as I said, the deduction doesn't apply to me so my interest was purely academic. I simply wanted to challenge some misperceptions, although science now tells us that people, when confronted with facts that challenge their erroneous beliefs, simply choose to ignore facts.
http://www.boston.com/bostonglobe/ideas/articles/…

I appreciate the civility, though.

http://intensedebate.com/people/batobe Bat One

although science now tells us that people, when confronted with facts that challenge their erroneous beliefs, simply choose to ignore facts.

Those of us on/in the Right are very familiar with the dilemma. This is especially true for those of us whose interests include economic and fiscal policy issues, and the history of our nation's founding, and the original intent of its founders, areas in which our adversaries on the Left are appalling ignorant and adamantly opposed improving their education.

As for the civility, you're more than welcome. It is sad but true that the two least common things in life are common sense and common courtesy. Had you chosen any other profession, the deductions you speak of would not be an issue.

Lady_Attorney

See, I would disagree with you that those on the left are ignorant of history or of the founding fathers and original intent. They are knowledgeable…they just don't agree with your interpretation, which is what both sides are doing since the originals are all dead and can't be questioned.

The founding fathers could never have envisioned the world as it is today, but they did include provisions for the burgeoning nation to evolve with the times. Heck if we want to talk original intent, I would not be posting on this website today as I would more than likely be owned by another person with no legal rights whatsoever. I know that some want to gloss over this reality. Also women were not allowed to vote or own property. So personally I am glad that things evolved. I guess if I were a white male I might feel differently.
Lady_Attorney

Also because I deal with the legal system on a daily basis and know the history of American juriprudence and why we are a common law country rather than a civil code country, I know that the founding fathers builts a great deal of flexibility into our system of checks and balances. They debated the issues and determined what was right for that moment in history, not for all eternity.

The bottom line, though, is that we all have to share this country. Neither side is leaving. I would prefer that people find some common ground rather than resorting to an "us" or "them" mentality because that is what destroys nations.

photog

How is it not "an "us" or "them" mentality" when you write "It's socialism to have a legal system where the poor have the same access to the courts as the rich." Rich (us) & poor (them).

Lady_Attorney

Did you not see the question mark?

http://intensedebate.com/people/batobe Bat One

Incidentally, you shouldn't let this be your last visit here at SAB. You are well-reasoned and articulate, and the importance you place on civility is an added treat, no matter what your politics.
Clem

A basic concept of taxation is to match expense with the revenue it relates to. A contractor building a building must accumulate all of the costs and deduct them in the year the building is sold – not when the expense is paid out. Retailers have to hold items purchased in inventory until they are sold.

Why should trial lawyers be any different? A med mal case may run into $300,000 or more in expense – if a settlement of a $2,000,000 comes after 4 years the expense of the case should be dedcuted in that year – just as other professions and businesses treat their costs. Why should lawyers be different?
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