Chief Industries, Inc. and Subsidiaries - Page 18

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          429 (7th Cir. 1970); Eisler v. Commissioner, 59 T.C. 634 (1973);            
          Old Town Corp. v. Commissioner, 37 T.C. 845 (1962); Oliver v.               
          Commissioner, T.C. Memo. 1997-84.  A settlement payment has                 
          business origin when the transaction or activity causing the                
          litigation originates in a trade or business; the potential                 
          consequences of a failure to prosecute or defend the litigation             
          are secondary.  See Woodward v. Commissioner, 397 U.S. 572, 577             
          (1970); United States v. Gilmore, 372 U.S. 39, 44-51 (1963);                
          Wells Fargo & Co. v. Commissioner, supra at 887; Anchor Coupling            
          Co. v. United States, supra at 433.  The courts have created                
          three independent tests which are helpful to determine whether a            
          settlement payment with a business origin is deductible.  These             
          tests are (1) whether the taxpayer/payor lacked confidence that             
          it would have prevailed in the lawsuit if it was not settled, (2)           
          whether the taxpayer/payor made the payment to avoid damages or             
          liability which might have resulted in the absence of the                   
          settlement, and (3) whether the belief held by the taxpayer/payor           
          concerning the validity of the claim against him or her was                 
          justified to the extent that a reasonable person in his or her              
          place would have thought that settlement was necessary.  Old Town           
          Corp. v. Commissioner, supra at 858-859.  An answer in the                  
          affirmative to any of these tests tends to establish that the               
          settlement payment is deductible under section 162(a).                      







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