Page 21 - Brook-Hollow Due Diligence Package

WHY DOES IT WORK (AND WHAT or credited, causes income to be constructively received. a separate fund or trust of assets exclusively for the the trust (or the insurance proceeds) in order for there

INCOME TAX RULES APPLY)? Rev. Rul. 66-45, 1966-1 C.B. 95. A taxpayer will not have taxpayer’s benefit. Sproull, 16 T.C. at 248 supra. to be a distribution of the proceeds to the beneficiary.
current income under the constructive receipt doctrine When the beneficiary realizes a non-forfeitable economic
merely because he seeks deferral of payments as part of Internal Revenue Code § 83 codified the economic benefit financial benefit in the trust (or the insurance policy)
A lawyer can defer receipt of (and federal income tax doctrine in the context of compensation for services. In
on) contingent fees until those fees are received, and a negotiated settlement. See Reed v. Commissioner, 723 the deferral attorney fee arrangement, the Attorney’s fee the payments become “funded,” or secured. On the other
have those deferred fees invested pre-tax. At the basic F.2d 138 (1st Cir. 1983). If, however, the taxpayer has a is compensation for the Attorney’s services. According hand, when the trust (or the insurance proceeds) is
level, this functions like a typical 401(k), without all current right to receive all of the funds before a deferral to Internal Revenue Code § 83, if property is transferred subject to the general creditors of the obligor, funding has
the tax restrictions. These deferrals have been around mechanism is established, current income cannot be to any person in connection with the performance not occurred. Childs v. Commissioner, supra.
for years, approved by the U.S. Tax Court in Childs v. avoided. Williams v. United States, 219 F.2d 523 (5th Cir. of services, the person who performed the services is The doctrine of economic benefit and IRC Section 83 do
Commissioner (2103 T.C. 634, 94 TNT 223-15 (1994), 1955). required to include in income the fair market value of not apply in a properly constructed attorney fee deferral
and affirmed by the 11th Circuit U.S. Federal Appeals The doctrine of constructive receipt does not apply in a such property (less any amounts that were paid for such because the assignment to Kenmare contemplates no
Court in Childs v. Commissioner, (aff ’d without opinion) properly constructed attorney fee deferral because the property) in the first taxable year in which the property setting apart of assets, the attorney has no right to assign,
89 F.3d 856, Doc 96-19540, 96 TNT 133-7 (11th Cir. attorney has no right to receive the payments before the becomes transferable or not subject to a substantial risk pledge or alienate his or her right to receive periodic
1996)). The Tax Court in Childs held that where an time fixed by the settlement agreement. of forfeiture, whichever comes first. Treasury Regulations payments, nor to accelerate or defer any payment there
attorney defers a contingent fee in a manner such as is Section 1.83-3 (e), provides that “the term ‘property’ under, and the payments have not become funded as held
described in this article, such deferral does not result in Additionally, it is of utmost importance that the attorney includes real and personal property other than money or by both the U. S. Tax Court and the 11th Circuit U.S.
constructive receipt of such funds at the time the fee is NOT have ongoing control over the investments upon an unfunded and Federal Appeals Court in Childs v. Commissioner.
deferred, nor is the deferral current, taxable income under which the future payments are based. Let’s be clear here:
the economic benefit rule codified in Internal Revenue those investments are the property of Kenmare (or the unsecured promise to pay money or property in the Why can the deferred fee be invested in any type of asset(s)?
Code Section 83. applicable assignment company) and any direction over or future.” Property also includes a beneficial interest in The investment(s) that Kenmare uses to fund the future
direct control of those investments subsequent to entering assets which are transferred or otherwise “set aside from
It is important to note that although constructive receipt into the deferral could likely result in disallowance of the claims of creditors of the transferor, for example, in a payment obligation(s) is irrelevant for tax purposes.
is discussed in the following section, the IRS did not the deferral (in tax law, control often effectively equals trust or escrow account.” Treas. Reg. § 1.83-3(e). Kenmare can choose to fund (or not fund, for that
appeal that portion of the Tax Court holding. They ownership). Caution: be suspect of any deferral offering matter) its obligation in any manner whatsoever. Kenmare
effectively conceded that a deferral completed according to which allows control or direction over the assets owned Under Internal Revenue Code § 83, property is taxed, for agrees to pay the future payments based upon the
the Childs methodology is not constructive receipt of the by the assignment company during the deferral period. Federal income tax purposes, when it is transferred to the parameters set out in the investment policy statement,
fee. In fact, the IRS has cited Childs a number of times Best practice: build flexibility into the ongoing investment service provider, unless it is both nontransferable and it which is contained in the deferral agreement.
to illustrate the concept of constructive receipt. The only management process at the creation of the deferral, which is subject to a substantial risk of forfeiture. The taxable This is an important concept. The Childs case turned
portion of the Childs holding that the IRS appealed was is Kenmare’s process. event occurs in the first taxable year in which the property upon the promise to make the future payments, not
the Internal Revenue Code Section 83 holding, which either becomes transferable or is no longer subject to a the funding vehicle used to fund those payments. The
they lost on in appeal, further discussed below. What is the economic benefit doctrine/IRC Section 83 and substantial risk of forfeiture. IRC § 83(a); Treas. Reg. promise itself to make the periodic payments was the
how does it apply to deferred attorney fees? § 1.83-3(a). Property is considered transferable only if
What is the constructive receipt doctrine and how does it the rights in the property in the hands of the transferee tax issue decided favorably for the taxpayers in Childs.
apply to deferred attorney fees? Under the “economic benefit doctrine,” a taxpayer on are not subject to a “substantial risk of forfeiture.” This The deferred fee structure must be constructed according
the cash method of accounting may be treated as having means, if the right to full enjoyment of the property is to the Childs structure from a timing and process
A cash basis taxpayer is in constructive receipt of income, received income in a year prior to actual or constructive standpoint. Assuming the process and structure complies
as opposed to actual receipt, when income, although not receipt in certain limited circumstances. See, e.g., Sproull conditioned upon the future performance of substantial with Childs, then the funding vehicle (if one exists at all)
actually reduced to a taxpayer’s possession, “is credited to v. Commissioner, 16 T.C. 244, 247 (1951), aff ’d. per services, a “substantial risk of forfeiture” will be deemed to is irrelevant for tax purposes.
his account, set apart for him, or otherwise made available curiam, 194 F.2d 541 (6th Cir. 1952). A cash-basis have occurred. IRC § 83(c) (1); Treas. Reg. § 1.83-3(d).
so that he may draw upon it at any time, or so that he taxpayer is taxed currently on the value of the economic The statute and regulations do not define when a promise This is the key to why an attorney may take advantage of
could have drawn upon it during the taxable year if notice benefit conferred when the taxpayer is assured the to pay is “funded.” See, however, Sproull v. Commissioner, the Brook-Hollow Capital loan program by combining a
of intention to withdraw had been given.” Section 1.451- benefit of future payments, even though such payments 16 T.C. 244 (1951), aff ’d 194 F.2d 541 (6th Cir. 1952); deferred fee structure with a loan. The future payments to
2(a) of the Code of Federal Regulations. The phrase “or will not be made or made available to the taxpayer Centre v. Commissioner, 55 T.C. 16 (1970); Minor v. be received from the deferred fee structure can be based
otherwise made available” was added to the Regulation until subsequent taxable years. A taxpayer is treated as United States, 772 F.2d 1472 (9th Cir. 1985). These upon the performance of any asset or managed group of
to make it clear that a taxpayer’s right to draw on income receiving the current economic benefit of future payments cases, taken together, concluded that funding occurs when assets as discussed above, including the performance of a
during the taxable year, even if it is not formally set apart when a payor unconditionally and irrevocably establishes the obligor of the trust is not required to do anything for debt obligation from Brook-Hollow Capital to Kenmare,