ATTORNEY FEE DEFERRAL
November 10, 2022
An often-overlooked issue for plaintiff attorneys is the management of taxation of their own contingent legal fees. As part of the normal rhythm of their practices, many attorneys experience peaks, and valleys with their own personal income. This leads to concerns for trial attorneys about the unpredictability of their own income. However, attorneys have a unique opportunity, not available to others who earn professional fees, to take their contingent legal fees and invest them on a pre-tax and tax-deferred basis to smooth out income. Attorney fee structures and deferred compensation arrangements allow lawyers to avoid taking income all in one taxable year when they earn a large fee. However, these solutions must be explored and decided upon prior to signing a release. While these financial products may seem complex, they are quite simple. Having an expert advisor who can provide you with different options is critical. The remainder of this chapter answers some frequently asked questions about deferral of contingent legal fees.
The legal foundation for this comes from a 1994 tax court decision Childs v. Commissioner. This decision was the last time the Internal Revenue Service challenged an attorney’s ability to enter into an agreement to defer their contingent legal fees. In Childs, U.S. Court of Appeals for the 11th Circuit affirmed the tax court’s ruling that attorneys may structure their fees, holding that taxes are payable on structured attorney fees at the time the amounts are received. The IRS has now cited the Childs decision favorably and recognized it as binding precedent in a Private Letter Ruling. In that PLR, the IRS described that the “Tax Court held that the fair market value of taxpayer’s right to receive payments under the settlement agreement was not includable income in the year in which the settlement agreement was effected because the promise to pay was neither fixed nor secured.” It went on to state that the “court further held that the doctrine of constructive receipt was not applicable because the taxpayer did not have a right to receive payment before the time fixed in the settlement agreement.”
Since these are “tax-advantaged” plans there are rules and formalities which can be a bit inflexible. It is a well-accepted tax construction that works. A lawyer, who earns a contingent fee, must decide before settlement to have his/her fee paid over time instead of taking it in a lump sum. The fee that is being deferred is paid to a life insurance company which will agree to make future periodic payments. The decision to defer can be made at any point before the settlement agreement is signed, even right up to the moment before the agreement is signed. Even though a fee has been technically earned over the course of representation of the client, the lawyer (according to tax authorities) hasn’t earned the fee for tax purposes until the settlement documents are executed. An attorney has the autonomy to decide whether to defer all or part of their fee in this way.
Attorney Fee Structures
Attorney fee “structures” are annuities and work very much like a non-qualified deferred compensation plan. The taxes that would be otherwise paid on the fee earned at the time the case is settled are deferred, and that money grows without tax on the growth. When distributions are made, the entire amount distributed during a year is taxable for that year. Based upon a taxpayer’s tax bracket, there may be some distinct tax advantages to entering into this type of arrangement as opposed to being taxed on the entire fee in the year it was earned and investing it after tax. Depending on how much the fees are, current tax bracket rates and any other sources of income, stretching out payment of fees can result in potentially a smaller tax burden. This is a challenge in most professions; timing of income but controlling the realization of income is possible for attorneys. Using attorney fee structures, plaintiff attorneys can defer their fees and income taxes on those fees for personal injury cases as well as many other types of cases. An attorney fee structure allows an attorney to set up a personally tailored retirement plan without the monetary and age restrictions or other drawbacks of a qualified plan. The attorney can defer taxes on his or her fees as well as the interest that those fees earn until the year in which a distribution is received from the fee structure.
The fee structure can help a lawyer avoid the highest tax brackets by leveling off income spikes due to large fees and spreading the income out over several years. An attorney who otherwise would have an unusually high income in one taxable year, but elects to spread the income over several years, avoids paying taxes in the highest bracket. Couple the tax savings with guaranteed earnings on the deferred funds, and the benefits of an attorney fee structure become obvious. Fee structures can be done by one attorney in a firm, without the requirement that other attorneys and employees participate, as would be the case in a qualified retirement plan. Also, there is no limit as to the amount of income deferred. By comparison, there are statutory limits to the amount one can defer in a qualified retirement plan. Even if the attorney participates in a qualified retirement plan or individual retirement account (IRA), he or she may still defer additional income through an attorney fee structure. Unlike traditional retirement plans, there is no requirement of annual deferments. A bonus is that the attorney fee structure is exempt from creditor’s claims in most jurisdictions.
When an attorney fee is earned in a personal physical injury case, including mass torts, with all payments to the claimant being eligible for exclusion from taxable income under I.R.C. § 104(a)(2), or workers’ compensation case under section 104(a)(1), the same structured settlement annuities that the personal injury victim obtains can be used and the payment options are greatly expanded. A qualified assignment is done just as in the case of the personal injury victim. Attorney fee structures can also be done on fees from cases that are not personal physical injuries under section 104 (a)(2). These include fees from cases based on claims of discrimination, sexual harassment, employment litigation, defamation, wrongful imprisonment, wrongful termination, other non-physical personal injuries including emotional distress, punitive damages, bad faith, breach of contract and construction defects, to name several.
Since fee structures are pre-tax and tax-deferred investment vehicles, a major benefit is the compounding effect of deferring payments out over longer periods of time. The longer an attorney waits for payments or the longer the duration of the distribution term, the better the financial result and possibly the tax result as well. Payments can start right away, but don’t have to. They can be deferred for any length of time and then can be paid out over a duration of years or for life. There are almost infinite possibilities in terms of the different types of arrangements that can be set up.
While structuring one hundred percent of every contingent fee earned probably doesn’t make sense or even a percentage of every fee, there are some unique benefits to doing so that shouldn’t be ignored. A systematic approach to structuring a portion of every fee can lead to a very attractive end result when an attorney wishes to retire. For example, if an attorney took fifteen to twenty five percent of every contingent fee earned and deferred it out to retirement, then they would have taken advantage of the benefits of a stable retirement income, estate planning advantages and tax benefits that most people in the workforce can’t achieve. With the unpredictability of the contingent fee law practice and life in general, you don’t want to rely on any one solution for retirement and so exploring fee structures is one way to hedge against the uncertainties.
There are some key reasons to do an attorney fee structure:
- It is a pretax investment in a guaranteed high yielding tax deferred annuity.
- Deferring compensation over time results in less being lost to taxes.
- Application of AMT can potentially be avoided.
- Gives you custom cash flow management and allows you to tailor your own income stream.
- Structured fees have enhanced protection from creditors, judgments, and divorce decrees.
There are some frequently asked questions related to structured attorney fees.
- Does the personal injury victim have to structure a portion of their settlement before the attorney fee can be structured? No. The claimant can take one hundred percent cash and the attorney fee can still be structured.
- How does fee structuring work? Structuring an attorney fee works very similarly to structuring the victim’s settlement. The most important thing to remember is you can’t take receipt of the fees.
- Why structure an attorney fee in a fixed interest rate annuity? Every portfolio should have some portion of the investments in fixed income. An attorney fee structure is a fixed income investment but unlike all others an attorney can make, the fee structure is a pre-tax investment. Whether a fee structure is appropriate for you will depend on a variety of factors, including your age, health, risk tolerance, retirement goals, tax bracket as well as your current and long-term needs. However, structuring your attorney fees could provide beneficial tax relief as well as secure and stable tax deferred income up to, and including, your lifetime.
- Can I receive the same types of income streams the victim can with their settlement proceeds? Yes, you can have lifetime benefits. You can have a “period certain” for a defined amount of time or a future lump sum payment as well as a series of lump sum payments. You can select immediate or deferred payments. You can have multiple income streams such as lifetime payments coupled with lump sum payments.
- Can I only structure contingent fees from a personal physical injury or wrongful death settlement? No. You can structure contingent fees from nearly any type of settlement. Companies have developed innovative products to expand the availability of attorney fee structures.
- What do I need to do to prepare for structuring my attorney fees? You should negotiate the inclusion of the fee structure when settling the case since the creation of a tax-deferred fee structure does require the cooperation of the defendant like when the victim’s settlement is structured.
While the foregoing discussion focused on “fixed” attorney fee structure annuities, there are two other potential options that are available. First, there is an equity indexed attorney fee structure product. The equity indexed attorney fee structure ties return to the S&P 500 index. If the index is up, your payments increase. If the index is flat or negative, there is no decrease. So, no downside risk, only upside. The upside though is limited to a maximum ceiling of 5%. As the payments increase, they lock and you can only go up, never down. This type of product provides more upside potential than the traditional “fixed” fee structure while remaining conservative. Second, there is a “non-qualified” attorney fee structure. These products in this type of structure involve an “off-shore” assignment to achieve tax-deferral based on international tax treaties. Instead of using an annuity as the funding vehicle, these are open architecture allowing the attorney to use his own financial advisor to select appropriate investments which typically include stocks, mutual funds, ETFs, bonds and other investments. These types of products are like the deferred compensation plans described immediately below since there are more available investment options but inherently have some additional risk due to the “off-shore” assignment. As with all the decisions associated with fee deferral, you should consult with your own tax advisors to determine what is most suitable.
Deferred Compensation Plans for Attorneys
A non-annuity deferred compensation arrangement is another mechanism that trial lawyers can use to invest the contingent legal fees they earn on a pre-tax and tax-deferred basis. Like Fortune 500 executives who defer their compensation, you can defer all or a portion of your fees until you are ready to start receiving them. Using this kind of solution, you have flexibility with investments as well as more control over timing of income. For example, if you wanted to defer a five hundred-thousand-dollar fee in the current taxable year by splitting the fee plus the investment gains into twenty quarterly payment buckets you could do so. Thirteen months prior to any scheduled quarterly payment, you can elect to withdraw it. However, if you don’t need the payment, the payment bucket will automatically roll forward to the end of the line. By laddering payments in this way, you can effectively manage your cash flow and better control the timing of taxation.
From a legal-tax perspective, fee deferrals are subject to the same body of tax rules that govern Nonqualified Tax-Deferred Compensation (NQDC). So, this means that the deferrals must avoid the application of the constructive receipt and economic benefit doctrines. NQDC has been used for decades by Fortune 500 companies to attract, retain, and further compensate their top-level executives. These deferred compensation plans rely upon the same decision as attorney fee structures, Childs. Since the legal underpinnings are the same and are well established, the risk is relatively like attorney fee structure annuities.
In summary, attorney fee deferral solutions allow a plaintiff lawyer to not only defer receipt of (and tax on) fees until received, he or she can have the deferred fees invested, and have the income produced from it also taxable over time rather than immediately. A lawyer may want to consider deferring fees as part of his or her own income tax planning, financial planning, and estate planning. Tax deferral mechanisms for lawyers are a great way to smooth out those income spikes caused by larger fees or just take better control over timing of income. Due to the variety of options, there is likely something that will best suit an attorney’s needs and investment preferences. Attorneys should explore these options to take back control of timing of income.
 Childs v. Commissioner, 103 T.C. 634 (1994) affirmed without opinion 89 F. 3d 56 (11th Cir. 1996).
March 11, 2021
Trial lawyers have been deferring fees into structured settlement products dating back to the early 1990s. The IRS challenged fee structure arrangements in Childs v. Commissioner. In this seminal 1994 tax case, the IRS argued the fees should be taxed in the year earned; however, the lower court and the 11th Circuit affirmed the decision that the fees are not taxable in the year earned but in the year(s) payments are received from the attorney fee structure. The ruling is more in-depth, but this established the precedent allowing fee deferral solutions to be developed.
The basic concept of these solutions is an irrevocable assignment of a fee before it is earned. This creates separation and keeps the taxpayer from taking constructive receipt of the funds.  A portion of the fee (up to 100%) can be used to purchase periodic payments that are taxed in the calendar year that funds are received. The amount deferred is not limited like a traditional 401(k) or IRA program. The age funds can be received is also not limited, so payments can be made before age 59.5.
What does this mean to an attorney? Simply put, with proper planning an attorney can manage the timing of their income. This gives the attorney two ways to generate a return on their fee. The first way is to earn a return via the investment itself. The products available offer a variety of investment choices. An attorney can be as safe or aggressive as they choose from an investment perspective. Products are available that allow an attorney to place a fee in a variety of annuity or investment funds. The variety of options has increased over the last ten years and allows for most people to find a solution that meets their objectives. The return can be fixed or variable in these products. The interest earned is deferred.
The second way to earn return is to receive payments at a lower tax rate in subsequent tax years. Regardless of political views, almost every change in the White House comes with a new tax plan. The tax plan usually involves some changes to the marginal rates on earned income. President Biden has introduced a variety of tax-related items during the past year. One that he frequently referred to during his campaign was an increase on top earners. He has stated that he will seek an increase the marginal tax bracket from 37% to 39.6% for those earning over $400,000. He has also proposed moving the capital gains rate to 39.6% for those earning over $1,000,000. These two changes could allow an attorney to pay a lower amount in taxes if they can defer until tax rates are lower. Any reduction in tax payments creates an added return for the attorney.
If you can combine a positive return on your investments and a reduced tax burden, you have created two ways to benefit from deferring a fee. The products in place create powerful tools that are not available to most taxpayers. It can be used in combination with other retirement plans to create income without a penalty before age 59.5. It can be used to defer excess amounts when you reach your deferral limits, which is $19,500 in 2021.
Attorney fee deferrals have a lot of benefits and with proper planning can create a more comprehensive retirement plan for most attorneys. It is always a good exercise to review the options with your tax and planning advisors to see what plan matches your long-term goals.
 A summary of Childs v. Commissioner can be found here: https://www.irs.gov/pub/irs-wd/0836019.pdf
 An explanation of constructive receipt can be found here: https://www.law.cornell.edu/cfr/text/26/1.451-2
 The IRS’ contribution limits can be found here: https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-401k-and-profit-sharing-plan-contribution-limits
May 13, 2020
An often-overlooked issue for plaintiff attorneys is the management of taxation of their own contingent legal fees. As part of the normal rhythm of their practices, many attorneys experience peaks and valleys with their own personal income. This leads to concerns for trial attorneys about the unpredictability of their own income. However, attorneys have a unique opportunity, not available to others who earn professional fees, to take their contingent legal fees and invest them on a pre-tax and tax-deferred basis to smooth out income.
To learn more download at the link below.
Reduce Taxes and Save for Retirement with Attorney Fee Deferrals
A few months ago, a trial attorney in New York City had just settled a big case. He was like a lot of people reading this article; well-respected, successful, hardworking. But while he was excited about the result, he was frustrated with the massive amount of taxes he would have to pay. So, he decided to consider deferring his fee.
He learned that deferring fees is similar to the deferred compensation programs offered to top executives at Fortune 500 companies. Just like in a 401(k), you don’t pay taxes on the fee until you receive it. In the meantime, the money earns the returns of various investments that you or your financial advisor chooses – stocks, bonds, real estate, etc. But unlike a 401(k), there is no limit on how much you can defer.
This can significantly reduce your tax burden in two ways. First, as with a 401(k), when you pay taxes later, your money grows faster. Second, by spreading the income out over time, you can end up in a lower tax bracket.
In addition to reducing his tax burden, this attorney learned that deferring his fee enabled him to better meet his cash-flow needs. While he wasn’t allowed to accelerate his scheduled distribution payments, he could choose to re-defer his payments within the rules of tax-deferred compensation. In addition, fee deferrals can be used as “golden handcuffs” to retain key associates, whereby if they leave too soon their deferred bonus comes back to the firm.
Ultimately this attorney did his due diligence and decided to defer a $1,000,000 of his fee. He ultimately chose to defer to significantly reduce his tax burden and better control his cash-flow needs.
- Attorneys can defer compensation like Fortune 500 executives do, to reduce their tax burdens
- Tie your fee to the returns of investments that you select – stocks, bonds, real estate, etc.
- Exercise better control over the timing of payments, and the resulting taxation.
- Use “golden handcuffs” to retain key associates, whereby if they leave too soon their deferred bonus comes back to the firm.
This attorney is one of the hundreds that have deferred fees in recent years. In fact, the concept has been around for decades. A lawyer’s right to defer fees was established by the U.S. Tax Court in Childs v. Commissioner (1994) and affirmed two years later by the 11th Circuit U.S. Federal Appeals Court. The IRS also cited the Childs case favorably in Private Letter Ruling 200836019.
From a legal perspective, fee deferrals are materially subject to the same body of tax rules that govern Nonqualified Deferred Compensation (NQDC), namely the constructive receipt and economic benefit doctrines. As mentioned earlier, Fortune 500 companies have been using NQDC for many decades to attract and retain their top executives.
So, what are the steps to defer? The steps are quite simple – and similar to a traditional fee structure. The attorney must enter into a Deferred Payment Agreement before the final settlement (i.e. before signing the release). Each partner decides how much to defer and for how long. This is the most critical part of the process.
It is also recommended that deferral language is added to the fee agreement with your client providing the client’s consent to fee deferrals and that the defendant is instructed to wire the deferred amount directly to the trustee and custodian. Payment instructions are often included in the release agreements, as well. In some cases, settlement monies are first paid into a Qualified Settlement Fund (QSF) and form there wired to the trustee and custodian. A QSF is basically an escrow account or trust that provides the necessary time for proper settlement planning and liens negotiation. In essence, it gives both the clients and the attorneys more time to figure out what to do with the settlement monies without the involvement of the defendant.
Fee deferrals can offer a range of benefits, from reducing an attorney’s tax burden to increasing their access to cash and helping them retain key associates. Deferring fees is not for everyone, however, particularly if an attorney needs the money now. And if an attorney does want to defer, selecting the right provider is critical to the safety of the deferral.
According to Yahoo Finance, in 1998 59% of Fortune 500 companies offered traditionally defined benefit pension plans to new hires. However, by 2017 Yahoo reported that only 16% of those same companies offered a traditional defined benefit pension plan. Defined Benefits Pensions typically pay a retiring employee a percentage of their average earnings for the remainder of their life based on the years with a company.
However, Trial Lawyers are in a unique position to create their own “pension” backed by some of the highest-rated life insurance companies in the world. A lawyer can do so by electing to enter into an attorney fee structure. In 1996, the 11th Circuit case Childs v. Commissioner was decided which rejected the Internal Revenue Service’s attack on attorney fee structure annuities. Since then, the IRS hasn’t again challenged a lawyer’s ability to invest their fees on a pre-tax and tax-deferred basis. As a result of Childs, like your 401(k) or IRA, an attorney can enter into a fee deferral program and defer the taxation until the funds are withdrawn. The real benefit is there is NO LIMIT on how much you can defer in a calendar year. You can defer $10,000 or $10,000,000 on the same pre-tax basis. So it is really a Super IRA.
Structured attorney fees work very much like a non-qualified deferred compensation plan. The taxes that would be otherwise paid on the fee earned at the time the case is settled are deferred, and that money grows without tax on the growth. When distributions are made, the entire amount distributed during a year is taxable for that year. Based upon a taxpayer’s tax bracket, there may be some distinct tax advantages to entering into this type of arrangement as opposed to being taxed on the entire fee in the year it was earned and investing it after tax.
Time is of the Essence
The most important factor in your retirement planning is time. The interest rate you earn on the funds is helpful but starting early is more valuable. At a recent state trial lawyer convention, they were discussing membership and the host said 8% of their membership responded to a survey that they would retire in the next 5 years. That sparked our interest. We went to the Department of Labor and Statistics to see the workforce demographics reported in 2018 and extrapolated some data to make assumptions about the Trial Lawyer community.
For demographic purposes, you can make the estimation that about 90% of all trial lawyers are between 24 and 65 years of age.
Ages 25 to 34: 23%
Ages 35 to 44: 25%
Ages 45 to 54: 25%
Ages 55 to 64: 19%
If we assume that most attorneys will receive $30,000 from Social Security at age 65, you will need to create another $70,000 to reach six figures. Here is the cost to defer today and set up an annual payment of $70,000 a year at age 65 guaranteed for the remainder of your life.
Age: 33 Cost: $479,889.20
Age: 43 Cost: $659,381.80
Age: 53 Cost: $908,812.80
If you placed the amount above in a traditional attorney fee structure, you would receive $70,000 annually each year for the remainder of your life starting at age 65. For female attorneys, the costs would be slightly higher because females tend to live longer; however, the percentages are the same. If you wait until 43, you will need to invest 37% more to achieve the same payments at retirement age. If you wait until 53, you will need to invest 89% more to achieve the same result.
As you have read in our other Attorney Fee blog posts, there are many ways to defer your fees. This link describes some of the pros and cons of the various options you have available to you.
It is important to understand that regardless of the rate, the longer you wait to start the more you will have to invest to achieve the same benefits. The amount of money you need to invest to achieve your desired goal will always increase. Every delay in starting costs you more money.
The risk you take with the deferrals is very specific to your own personal market experience and tolerance.
Defer Fees on Your Terms
You can start to build your plan with $25,000 or $50,000. You can do it one time or one hundred times. You can defer one year and not the next. One partner in the firm can defer and the other can take their fee now. There really is no limitation to how you use deferral program. The options are endless.
Warren Buffet said, “The rich invest in time. The poor invest in money.” The most important thing to do is start now. Your age does not matter because every day you wait will cost you more for the same plan. The more time you have the less money you need to invest!
Investing your fees in a pre-tax and tax-deferred attorney fee deferral program is a very smart way to plan for the future. Attorney fee deferral programs are created for a variety of reasons. Based upon your specific planning needs and objectives, you can defer your contingent legal fees to accomplish any of the following:
- Cover future fixed costs of your law firm
- Reduce present-day tax burdens by receiving income over time
- Create “golden handcuffs” for key firm employees
- Pay for future personal expenses (for example, college expenses for your children)
- Retirement planning needs
Most attorneys use fee deferrals for traditional retirement planning purposes. Attorneys can utilize normal retirement plans as part of their overall portfolio. They can use IRAs, Roth IRAs, 401(k)s or other traditional options available to non-lawyers. These options are usually the starting point for a retirement savings plan. However, attorneys can utilize fee deferrals to uncap the amount they can invest pre-tax each year and eliminate early withdrawal penalties associated with traditional retirement plans.
The benefits and ways to use attorney fee deferrals are many. The problem is that attorneys generally do not leverage them the way they should. In an industry that creates billions of dollars of contingent legal fees each year, a very small percentage are deferred using attorney fee deferral programs. When it comes to retirement planning, the one mistake you cannot make is doing nothing at all. You must do something!
Choosing the right plan or deferral time frame isn’t as important as creating a systematic program of deferring fees and sticking with it. The program can be modified and new deferrals can account for changes that might become necessary in the future. If you defer too long, you can defer your next one for a shorter time frame. If you defer too short, you can defer your next fee for a longer period. If you think the rate of return in one program is low, you can utilize a different plan the next time. You can change the plans and adapt along the way. The one thing you cannot change is the missed opportunity if you fail to defer.
The power of deferral is a function of two variables: time and interest rate. The earlier you defer and the longer the duration, the more exponential growth you will experience. To illustrate, take a hypothetical 45 year old lawyer whose birthday is July 28. If he or she defers a $25,000 fee on October 1, 2018, here are the numeric differences at 5 year intervals using an assumed 5% interest rate:
Age 50: $31,803.43
Age 55: $40,815.21
Age 60: $52,380.55
Age 65: $67,223.04
As you can see, the compounding of interest starts to multiply very rapidly after 10 years. The 5% used above is a very conservative assumed interest rate. The average rate of return of the S&P 500 over the last 90 years is over 9%. Here is the same $25,000 fee deferral at 9% assumed interest rate:
Age 50: $38,529.18
Age 55: $60,624.42
Age 60: $94,448.88
Age 65: $147,876.70
The rate of return has a big impact but time is the equalizer. You must do something now to capitalize on the programs available. For my fellow Generation X readers, a study by Nationwide showed that 52% of us do not utilize a financial advisor or seek financial guidance. This percentage is very troubling when coupled with the fact that we are in our prime earning years. We are earning more money and not seeking or receiving any guidance. If you don’t have a plan – you are not going retire the way you want.
Financial stability is also a driver in your mental and physical health. According to the Gallup-Healthways Well Being Index and other studies, Americans with greater financial stability are in better physical and mental condition. Good health into your retirement years can create a longer income-generating life and decrease your overall health costs in retirement. Developing a plan is a win/win!
Fee Deferral must start today if you want to be prepared for when you retire. The decisions about plan design are less important and can be changed as you grow into your plan. The decision to defer a $25,000 fee is not going to have a major impact on your life in 20 years. However, if you wait 5 years to start it will be far less impactful. The Washington Post reported that the biggest regret for Americans was not saving for retirement. Do not become a statistic. Start your fee deferral program today.
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For more information on the types of programs available to attorneys see our previous blog posts:
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