James E. Redlark and Cheryl L. Redlark - Page 51

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          partner or shareholder's individual obligation to pay taxes also            
          includes the personal responsibility to pay any tax deficiency              
          arising from incorrect returns and the associated penalty                   
          interest.  Because the duty to pay penalty interest is personal             
          to the individual partner or shareholder, penalty interest cannot           
          constitute a business expense.7                                             
               Plaintiffs, having chosen to operate their businesses as               
          partnerships and S corporations, bear personal responsibility for           
          tax deficiencies and the associated interest attributable to                
          their businesses.  As a result, they cannot deduct the penalty              
          interest they paid in 1986 from gross income as a business                  
          expense pursuant to I.R.C. section 62(l).  Plaintiffs, therefore,           
          are not entitled to a refund of their alternative minimum tax.              
          The judgment of the district court is AFFIRMED.                             









          (...continued)                                                              
          as ordinary business expenses.  Id. at 603.  Generally, interest            
          on a deficiency assessment is not an ordinary by product of                 
          business operations and is not deductible.  Id.  However,                   
          deficiency  interest may be deducted where the nature of the                
          business leads to the expectation that on numerous occasions a              
          taxpayer acting in good faith to evaluate inventories, which form           
          a part of his or her return, will nevertheless fail to evaluate             
          them properly.  Id. at 603 & n.1.  The court concluded the                  
          taxpayer's livestock business fit this exception because                    
          "qualified minds" may differ over the valuation of livestock.               
          Id. at 603.                                                                 
               We believe, as did the panel presiding in Polk, that Polk              
          settled a unique controversy.  The parties have not presented any           
          facts nor can we imagine another situation in which penalty                 
          interest would be an ordinary and necessary expense of operating            
          a trade or business.  Furthermore, Polk has no relevance here               
          because it involved a taxpayer operating a sole proprietorship              
          rather than a partnership or S corporation.                                 
          7 This liability is in addition to, and separate from, the                  
          direct liability of a corporate employer.  Section 6672 is not in           
          issue in this case.                                                         




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