By John Darer® CLU ChFC MSSC CeFT RSP CLTC
⚖️ Can retired New York lawyers exclude structured attorney fee income under the $20,000 pension and annuity exclusion?
No. New York’s pension and annuity exclusion under NY Tax Law §612(c)(3‑a) applies only to qualified pension and annuity income. Structured attorney fees are non‑qualified deferred compensation, not employee‑based retirement income, and therefore do not qualify. This interpretation has remained consistent since TSB‑M‑81(19)R(1) (NYS Dept. of Taxation, 1982).
📘 How New York’s Pension & Annuity Exclusion Works (2026)
🎂 Age Requirement
The taxpayer must be 59½ or older during the tax year.
💵 Amount of Exclusion
The exclusion remains $20,000 per taxpayer. A 2025–2026 bill proposing an increase to $30,000 was stricken and did not become law.
🧾 Federal AGI Requirement
The income must be included in federal AGI before it can be subtracted on the New York return.
📘 What Qualifies as Pension & Annuity Income
New York allows the exclusion for:
- periodic payments for services performed as an employee before retirement (NY Tax Law §612(c)(3‑a));
- traditional IRA distributions included in federal AGI;
- 401(k), 403(b), and 457(b) plan distributions;
- Keogh (HR‑10) plan distributions;
- employer‑purchased annuity contracts.
These categories align with federal definitions of qualified plan distributions, which in 2026 follow updated IRC §415 limits (e.g., defined benefit limit $290,000; defined contribution limit $72,000; elective deferral limit $24,500; catch‑up $8,000) .
🚫 What Does NOT Qualify
structured attorney fees;
non‑qualified annuities purchased personally;
payments derived from contributions made after retirement;
Roth IRA qualified distributions (not included in AGI);
🔍 Why Structured Attorney Fees Do NOT Qualify
A structured attorney fee is:
- self‑employment income, not employee wages;
- non‑qualified deferred compensation, not a pension;
- not paid from a qualified plan under IRC §§401–408;
- not employer‑funded;
- taxable when received, but still ordinary income.
New York’s exclusion applies only to employee‑based retirement income, and the Department of Taxation has never expanded the definition to include structured fees. The controlling interpretation remains TSB‑M‑81(19)R(1).
🧩 What Is a Structured Attorney Fee? (2026 Definition)
A structured attorney fee is a non‑qualified deferred compensation arrangement in which a lawyer elects to receive contingent fees over time. Key features include:
- the election must occur before settlement is finalized;
- payments must be part of the settlement agreement;
- funding is typically through a qualified assignment;
- payments are taxable when received, not when earned;
- the arrangement is not ERISA, not a pension, and not a qualified plan.
Structured fees are useful for cash‑flow smoothing and tax‑timing, but they do not convert into “pension income” under New York law.
🧩 What About Programs Like Jurisprudent, OptCapital, and Other Attorney Fee Deferral Platforms?
Several companies offer alternative attorney‑fee deferral programs, including market‑based deferrals, trust‑based structures, and non‑annuity assignment arrangements. Programs such as Jurisprudent and OptCapital fall into this category. While these platforms differ in how deferred fees are invested or administered, New York treats all of them the same way for tax purposes. They are all non‑qualified deferred compensation, not employer‑sponsored retirement plans, and therefore do not qualify for New York’s $20,000 pension and annuity exclusion (NY Tax Law §612(c)(3‑a); TSB‑M‑81(19)R(1)). The branding, investment strategy, or platform used does not convert attorney fees into “pension income” under New York law.
💬 Frequently Asked Questions (2026)
💬 Can a New York attorney structure fees if the funds are already in an IOLTA account?
No. Constructive receipt has occurred; deferral is no longer possible.
💬 Can a New York partnership deduct structured fees paid to partners?
No. Payments to partners are treated as distributive share or guaranteed payments.
💬 Can a sole proprietor deduct structured fees paid to themselves?
No. You cannot deduct payments to yourself.
💬 Are structured attorney fees subject to ERISA?
No. They are non‑qualified arrangements.
💬 Are structured attorney fees “pension plans”?
No. They do not meet the definition of a qualified pension, annuity, or retirement plan under federal or New York law.
🎯 Bottom Line (2026)
Retired New York lawyers cannot use the $20,000 pension and annuity exclusion for structured attorney fee income. The exclusion remains limited to qualified retirement income, and structured fees remain ordinary income when received, regardless of age or payment form.
Related Reading
- Can Structured Attorney Fees Be Paid to a Law Firm? — entity‑level structuring rules and compliance considerations.
- Attorney Fee Deferral Programs: What Lawyers Need to Know — a breakdown of market‑based and trust‑based platforms.
- 4structures® Structured Attorney Fees and Attorney Fee Deferral Solutions — professional guidance on structuring contingent fees.













