David Rothner and Nancy J. Rothner - Page 9

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          the payment of the fine to be an expense of that business.  See             
          Commissioner v. Tellier, 383 U.S. 687, 689 (1966); Ostrom v.                
          Commissioner, 77 T.C. 608, 613 (1981).                                      
               Respondent also concedes that section 162(f), which                    
          disallows the deduction of "any fine or similar penalty paid to a           
          government for the violation of any law", does not apply to                 
          petitioner's payment of the CME fine.  Accordingly, no question             
          as to the allowability of the deduction on public policy grounds            
          is involved.  Sec. 1.162-1(a), Income Tax Regs. ("A deduction for           
          an expense * * * which would otherwise be allowable under section           
          162 shall not be denied on the grounds that allowance of such               
          deduction would frustrate a sharply defined public policy");1 see           
          also S. Rept. 92-437, at 72 (1971), 1972-1 C.B. 559, 599; S.                
          Rept. 91-552, at 247 (1969), 1969-3 C.B. 423, 597.  Consequently,           
          the only matter remaining in dispute is whether the payment of              
          the CME fine was "ordinary" and "necessary", which is a question            
          of fact.  Commissioner v. Heininger, 320 U.S. 467, 475 (1943).              
               The general guidelines for deciding whether an expense is              
          "ordinary and necessary" are well established.  Two significant             
          aspects of the term "ordinary" have been identified by the cases            
          construing section 162(a) and its predecessors.  In Commissioner            
          v. Tellier, supra at 689-690, the Supreme Court noted that the              

          1    The Commissioner has also taken this position in rulings.              
          See, e.g., Rev. Rul. 80-211, 1980-2 C.B. 57.                                





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