James E. Redlark and Cheryl L. Redlark - Page 49

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          onto their owners rather than pay taxes themselves, plaintiffs              
          point out these entities cannot account for deficiency interest             
          in determining distributable income.  The partners and                      
          shareholders, therefore, may deduct deficiency interest                     
          attributable to the entities as a business expense on their                 
          individual returns.                                                         
               The government argues the interest payments are a personal             
          rather than a business expense.  Partnerships and S corporations            
          are entities separate from their owners for the purposes of                 
          calculating income and deductions.  Therefore, if the 1986                  
          interest represents a business expense, the expense and deduction           
          belong to the partnership or corporate entities.  However,                  
          because partnerships and S corporations have no federal income              
          tax liability, they bear no responsibility for interest on unpaid           
          taxes and, thus, they cannot consider penalty interest a business           
          expense.  The government adds, contrary to the district court's             
          conclusion, sole proprietors generally cannot deduct deficiency             
          interest as a business expense because deficiency interest does             
          not constitute an ordinary and necessary expense of operating a             
          business.3  Penalty interest constitutes the cost of not paying             
          the correct amount of taxes and not the cost of producing the               
          taxable income.  Therefore, a sole proprietor, like an employee,            
          cannot deduct this interest as a business expense and neither can           
          partners and S corporation shareholders.                                    
               We review de novo a grant of summary judgment.  Phillips               
          Petroleum Co. v. Lujan, 4 F.3d 858, 860 (10th Cir. 1993)                    
          (citation omitted).  Summary judgment is appropriate if no                  
          genuine issue of material fact exists and the moving party is               
          entitled to judgment as a matter of law.  Fed. R. Civ. P. 56(c).            
               The alternative minimum tax imposes additional income taxes            
          on individual taxpayers for whom a portion of their alternative             
          minimum taxable income exceeds their regular tax liability.                 
          I.R.C. section 55(a).4  Adjusted gross income serves as the                 
          starting point for calculating alternative minimum taxable income           
          and, thus, the alternative minimum tax.  I.R.C. section 55(b).              
          To determine adjusted gross income, a taxpayer lessens gross                
          income by several "above the line" deductions including allowable           
          deductions "attributable to a trade or business carried on by the           
          taxpayer" if the trade or business does not amount to the                   
          taxpayer's services as an employee.  I.R.C. section 62(l).  The             
          code defines business expenses as "all the ordinary and necessary           

          3 The government goes on to contend an individual taxpayer                  
          can never deduct deficiency interest from gross income as a                 
          business expense.                                                           
          4 Citations to the tax code refer to the amended provisions                 
          of the 1954 code effective in 1986.                                         




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