- 12 - We must decide whether any of the claimed legal expenses which petitioners deducted were attributable to Resthaven's cemetery business and, therefore, deductible under either section 162 or 212. In United States v. Gilmore, 372 U.S. 39, 49 (1963), the Supreme Court held that the proper time for characterizing an expense as either "business" or "personal" is when the expense is incurred. The U.S. Court of Appeals for the Tenth Circuit, based on the Supreme Court's holding, formulated the "origin of the claim" test. That test must be separately applied to the divided parts: the divorce action and the action in which the corporation was a party. Dolese v. United States, 605 F.2d 1146, 1151 (10th Cir. 1979). Hence, we must decide the origin of the expenditures as they apply to petitioners and to Resthaven. Wallace v. Commissioner, 56 T.C. 624, 632 (1971). This Court has held that, when appropriate, litigation expenses should be allocated between personal and business costs. Michaels v. Commissioner, 12 T.C. 17 (1949). "Such an allocation between deductible and non-deductible expenses is not unusual, * * * although 'a rough approximation is all that can be expected.'" Burch v. United States, 698 F.2d 575, 579-580 (2d Cir. 1983) (quoting Ditmars v. Commissioner, 302 F.2d 481, 488 (2d Cir. 1962), revg. and remanding T.C. Memo. 1961-105).Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: May 25, 2011