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Dubious Donation

Although it is often told as a joke, I always felt sorry for the poor saps who thought they had bought the Brooklyn Bridge. My scorn was reserved for the scoundrels who sold it to them. Not only had they tried to enrich themselves at the expense of innocents, they besmirched--however slightly--an iconic piece of America in the process.

Timothy McVeigh's lawyer tried to do something of the same, but in November 2007 the U.S. Tax Court wouldn't let him get away with it. Stephen Jones was the court-appointed lawyer for McVeigh, who was convicted and executed for blowing up the Murrah Federal Building in Oklahoma City, Okla., in 1995, killing 168 people including many children. It remains the worst case of domestic terrorism in our history and an iconic event for thousands still.

On the day in August 1997 he withdrew from representing McVeigh, Jones contacted the University of Texas at Austin to propose donating his case file to its Center for American History, so long as he could do so before the end of year. He wanted the benefit of his charitable contribution as soon as possible.

The file consisted of 171 boxes of federal documents, including FBI interviews with witnesses; 100,000 color and black and white photos of the crime scene; audio and video tapes; computer disks; copies of letters from McVeigh; materials from the investigation of David Koresh's Branch Davidian sect in Waco, Texas; and other reports. All of them were copies, and none of them were created by Jones. He hired an appraiser who said the file was worth about $300,000. With that, he claimed a tax deduction in that amount as a charitable contribution to the university.

The IRS claimed Jones donated something he did not own (the Brooklyn Bridge?), denied the deduction and sought back taxes from Jones and his wife. Jones repeated his original money grab with an appeal to the Tax Court.

It was a galling move because, in doing so, he ignored the clear ethical rule and the majority legal rule that a lawyer's client files belong to the client. The court made quick work of his ownership claim by dismissing it with a straightforward review of the law and practice. In doing so, it pointed out Jones was merely the authorized custodian of McVeigh's property. As McVeigh's fiduciary, he had a duty to protect it and certainly was not entitled to "publicize, sell, or otherwise dispose of the case file to [his] benefit."

The court went on to make the compelling and rather obvious point that a donor can claim a charitable deduction only to the extent of his ownership basis in the contribution. Thus, if you donate $300,000 dollars in cash, you get to deduct that amount. If you make an in-kind contribution, you get to deduct only the amount equal to your own basis, or personal investment in it (assuming, of course, you actually own it).

Because Jones was essentially given all of the files and had no role in creating any of them, the court said his basis was zero. At most, he was a mere collector of documents who did not deserve a taxpayer subsidy for either his minimal role as a collector or as a donor to the university, which by the way is wholly innocent of everything in this story.

Thus, even if Jones had been able to overturn the fundamental rule that a client's legal files belong to the client, he would still have failed in his attempt to exploit his accidental role as the attorney of the Oklahoma City Bomber.

The law may never be able to protect hapless purchasers of the Brooklyn Bridge, and it is difficult to conjure up too much sympathy for them. But with the case of Jones v. Commissioner of Internal Revenue on the books, the taxpayers are a bit safer from ethically numbed lawyers who would exploit both them and their clients.

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Bruce D. Collins

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