Henry F. K. Kersting - Page 16




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          INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992).  Section             
          162 generally allows a deduction for all the ordinary and                   
          necessary expenses paid or incurred in carrying on any trade or             
          business.  In order for petitioner to meet his burden of proof              
          under section 162(a), he must prove the item claimed as a                   
          deductible business expense: (1) Was paid or incurred during the            
          taxable year; (2) was for carrying on his trade or business; (3)            
          was an expense; (4) was a necessary expense; and (5) was an                 
          ordinary expense.  See Commissioner v. Lincoln Savs. & Loan                 
          Association., 403 U.S. 345, 352 (1971); Welch v. Helvering,                 
          supra.  The determination of whether an expenditure satisfies the           
          requirements of section 162 is a question of fact.  Commissioner            
          v. Heininger, 320 U.S. 467, 475 (1943).  On this record,                    
          petitioner has failed to prove he is entitled to any business               
          deductions under section 162, and we so hold.7                              
          Additions to Tax                                                            
               Section 6651(a)(1) reads in pertinent part:                            
               In case of failure * * * to file any return * * * on                   
               the date prescribed therefor * * *, unless it is shown                 
               that such failure is due to reasonable cause and not                   
               due to wilful neglect, there shall be added to the                     
               amount required to be shown as tax on such return 5                    
               percent of the amount of such tax if the failure is for                


               7 The findings in Kersting (Consolidated Cases) that none of           
          the nominee corporations kept adequate books and records, and               
          that petitioner used the nominee corporations to pay his personal           
          living expenses render petitioner's claim to legitimate business            
          expenses particularly suspect.                                              




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