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McGuireWoods LLP

D.C. Court of Appeals Reverses Itself, Decides Tax Code Provision is Constitutional
A three member panel of the Court of Appeals for the District of Columbia ruled that an employee’s recovery for non-physical personal injuries was income and that she should pay tax on the recovery. See Murphy v. United States, Docket No. 05-5139 (D.C. Cir. July 3, 2007). This otherwise ordinary ruling is only extraordinary because of its context: last August, the same Court of Appeals panel ruled the recovery was not income, and that the Internal Revenue Code provision allowing the exclusion from income of physical personal injuries, but not non-physical personal injuries, was unconstitutional. In December 2006, the Court vacated its August ruling. For McGuireWoods’ prior analysis of this case, please see "D.C. Court of Appeals Finds Tax Code Provision Unconstitutional" and "D.C. Court of Appeals to Reconsider Decision Finding Tax Code Provision Unconstitutional."

In Murphy, the taxpayer argued that Internal Revenue Code section 104(a)(2), which excludes from gross income damage awards for physical personal injuries but does not exclude from gross income damages awards for non-physical personal injuries, such as mental distress and loss of reputation, was unconstitutional. The taxpayer claimed that her injury was a “tort-type” of injury, typically excluded from gross income under Section 104(a)(2). Since Section 104(a)(2), however, did not exclude her recovery from gross income, she asserted the tax code provision is unconstitutional.

In its original August decision, the Court held that the taxpayer’s recovery for injury to a personal attribute, such as her well-being or a good reputation, was a nontaxable “return of human capital.” The Court found that the framers of the Sixteenth Amendment did not intend that type of recovery to constitute income. As a result, the Court held that Internal Revenue Code section 104(a)(2), which it claimed required such a recovery to be included in income, was unconstitutional.

In its decision this week, the Court provided a more traditional analysis of Section 104(a)(2). The Court concluded that the taxpayer’s injuries to her mental health, reputation, and emotional state were not damages due to personal physical injuries. As a result, Section 104(a)(2) did not permit her to exclude her recovery from gross income.

The Court also dismissed the taxpayer’s Constitutional arguments. The Court relied on an analysis that differentiated between taxes upon ownership of property (which are direct taxes and must be apportioned) and taxes upon the use of property, a privilege, an activity, or a transaction (which need not be apportioned). Since the taxpayer was only taxed after she received a compensatory award, the Court wrote that the tax “seem[ed] to be laid upon a transaction.” As a result, the Court concluded that the tax was an excise tax and not a direct tax subject to the apportionment requirement.

After the Court's August 2006 decision, it was commonly thought that the decision, if upheld, would result in taxpayers filing a multitude of refund claims with the Internal Revenue Service, plaintiffs demanding that their employers not issue Forms 1099 with respect to certain litigation recoveries, and years of audits by the IRS to uncover damage awards unreported by taxpayers. The decision this week should substantially limit those consequences, as least for taxpayers who consult with professional tax advisors.

07-05-2007

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Cozen O' Connor

Ladd R. Gibke Joins Cozen O’Connor’s Dallas Office as Associate
Ladd R. Gibke has joined Cozen O’Connor’s Dallas office as an associate in the subrogation and recovery department. Prior to joining the firm, Gibke practiced with Baron & Budd, P.C., in Dallas. Gibke has extensive experience in high profile litigation, having tried many cases to verdict, managing asbestos litigation in several states, as well as the federal asbestos multi-district litigation in Philadelphia. He has also handled commercial, business, insurance and personal injury litigation matters, and has experience in drafting motions and briefs, taking depositions, supervising attorneys and negotiating settlements. Prior to entering private practice, he served as an Assistant Criminal District Attorney in the Collin County District Attorney’s Office in McKinney, Texas.

Gibke was named a 2004 and 2005 Texas Super Lawyer by Law & Politics, and is AV-rated by Martindale-Hubbell. He is a graduate of Sam Houston State University (B.S., 1981) and South Texas College of Law (J.D., 1985).

07-05-2007

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Cozen O' Connor

Cozen O’Connor Attorney Thomas G. Wilkinson Elected Vice President of Pennsylvania Bar Institute
Cozen O’Connor member Thomas G. Wilkinson has been elected to the position of Vice President of the Pennsylvania Bar Institute, the educational arm of the Pennsylvania Bar Association and the largest non-profit provider of continuing legal education in the state. A member in the firm’s Philadelphia office, Wilkinson concentrates his practice in business and securities litigation, business torts, complex environmental and insurance coverage, and professional liability matters.

A resident of Haverford, Pa., Wilkinson is an adjunct professor at Villanova University School of Law and a frequent author and lecturer on civil litigation topics. He also serves as Program Chair for the Villanova Law Inn of Court. A member of the American, Pennsylvania and Philadelphia Bar Associations, he is admitted to practice in Pennsylvania and Massachusetts, before the U.S. Court of Appeals for the Second, Third and Fourth Circuits, the U.S. District Court for the Eastern and Middle Districts of Pennsylvania and the U.S. Supreme Court.

07-05-2007

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Buchanan Ingersoll & Rooney PC

Labor and Employment Shareholder Paul Waters Joins Buchanan Ingersoll & Rooney in Tampa and Washington, D.C.
Buchanan Ingersoll & Rooney PC announced today that shareholder Paul J. Waters joined the firm in its Labor and Employment Section in Tampa. Waters represents employers involved in investigations, enforcement, and rule-making proceedings by the federal Occupational Safety and Health Administration, as well as state OSHA agencies. He has also represented clients in civil litigation, white-collar criminal defense and property liability litigation. He spent the last eight years with international law firm, Reed Smith.

"Paul's background in representing clients facing national OSHA matters, as well as his familiarity with the health care industry, makes him a great fit for our firm, especially in this region," states Jim Kennedy, managing shareholder of Buchanan's Tampa office. "We are thrilled to have him on board."

About Waters

Paul Waters is a member of Buchanan's Labor and Employment Section. His practice focuses upon the representation of employers in enforcement proceedings before the Occupational Safety and Health Review Commission and state occupational safety and health agencies. He has represented major health care trade associations during ergonomic rule-making proceedings. He has handled multiple appeals in state and federal courts of appeal concerning occupational safety and health cases and other civil litigation. He also represents clients before the U.S. Department of Labor in Sarbanes-Oxley whistleblower investigations.

Waters received his law degree from Boston College Law School in 1994. He received his masters degree in international finance and economics in 1989 and his bachelor of arts degree, cum laude, in economics, in 1988, both from Brandeis University. He attended ESSEC in Paris, France, in 1987, where he studied international economics and finance.

07-05-2007

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Andrews Kurth

Andrews Kurth’s Tom Perich to Head Houston Office
Andrews Kurth lawyer Tom Perich has been appointed Managing Partner of the firm's Houston office. The move comes in conjunction with the firm's election of a new managing partner.

"I am very gratified by this opportunity," said Perich. "I look forward to helping continue the great client service that is delivered by our outstanding team of lawyers and staff."

Perich is also a member of the firm's Policy Committee, the governing body of the firm, and recently stepped down as Chair of the Business Transactions Section. He focuses his practice in the areas of banking and finance and works with clients in domestic and international commercial construction, real estate development and energy (focusing on upstream and E&P) loans. He also helps clients with leasing and project finance; monetization and structured finance, including off-balance-sheet financing, production payments, prepaid forward contracts and credit insurance; among many others.

"Tom has been a mainstay at our firm for many years, making a daily difference not just as a great lawyer but in his development of the firm's real estate and banking practices," said Bob Jewell, the firm's Managing Partner. "We are fortunate to have a lawyer of Tom's talents take on such an important leadership role."

07-05-2007

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Andrews Kurth

Andrews Kurth’s Mark Solomon to Head Dallas Office
Andrews Kurth lawyer Mark Solomon has been appointed as Managing Partner of the firm's Dallas office. He will also serve as a member of the newly formed Executive Committee which was created in conjunction with the election of a new firm-wide Managing Partner.

"I am both honored and humbled by this incredible opportunity," said Solomon. "I look forward to helping continue the great client service that is delivered by our talented team of lawyers and staff."

In addition to his busy M&A, public and private securities offerings, venture capital, and private equity transactions work, Mark is a frequent speaker and author on a variety of business and transaction topics. He is consistently recognized as a Texas Super Lawyer in corporate finance in Texas Monthly magazine and as one of the Best Lawyers in Dallas in corporate finance and mergers and acquisitions in D Magazine.

"We have tremendous confidence in Mark. He is a great lawyer and a good friend," said Bob Jewell, the firm's new Managing Partner and Chair of the Executive Committee. "We are lucky to have such a talented professional take on this critical leadership role and to help carry the firm to the next level."

07-05-2007

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Andrews Kurth

Andrews Kurth’s Shemin Proctor to Head Washington, DC Office
Andrews Kurth lawyer Shemin Proctor has been appointed Managing Partner of the firm's DC office.

"Having started my career at Andrews Kurth, I am delighted to take on the role of Managing Partner at a time of growth for the DC office," said Ms. Proctor. We have a talented team of lawyers and staff and I look forward to working with my colleagues in my new role."

Focused on energy regulations and transactions, Ms. Proctor counsels clients regarding the applicability of federal laws to the provision of natural gas and oil services, as well as the operation and management of energy assets. She has represented major energy companies, including natural gas pipelines and energy marketing and trading companies in proceedings before the Federal Energy Regulatory Commission on natural gas matters, including complaint proceedings, and has represented natural gas pipelines before the federal courts.

"Shemin is a great lawyer who exhibits sound judgment and outstanding leadership," said Bob Jewell, the firm's new Managing Partner. "The firm is extremely fortunate to have a lawyer of Shemin's talents take on such a critical role."

07-05-2007

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