University of Illinois Law Review
In early 2005, the U.S. Supreme Court answered a question that had been plaguing courts for years: whether plaintiffs should be taxed on the portion of contingent fee awards paid to their attorneys. The Court determined that they should. In this article, Professor Brant J. Hellwig focuses on the analysis employed by the Court to reach its conclusion in Commissioner v. Banks and the implications of that analysis for future cases. Although Professor Hellwig believes that the Court correctly ascertained the plaintiff's tax burden, he suggests that the Court's use of the assignment of income doctrine was both unnecessary to the final determination of the question before the Court and costly in its potential to confuse the issues of income realization and assignment of income. By applying the assignment of income doctrine in a commercial transaction and employing the doctrine as a means of income realization, the Court broke with the foundational principles of equity that originally supported the assignment of income doctrine and instead created a potential conflict with statutory authority on the question of income realization. Professor Hellwig calls for courts to restrict expansion of this trend, noting the potential of the Court's decision to create more problems than it solves.
Brant J. Hellwig, The Supreme Court's Casual Use of the Assignment of Income Doctrine, 2006 U. Ill. L. Rev. 751 (2006).