David Rothner and Nancy J. Rothner - Page 10

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          "principal function of the term 'ordinary' * * * is to clarify              
          the distinction, often difficult, between those expenses that are           
          currently deductible and those that are * * * capital                       
          expenditures".  Additionally, the term "ordinary" has been                  
          defined as "normal, usual, or customary".  Deputy v. DuPont, 308            
          U.S. 488, 495 (1940).  A payment of an expense is "normal" if it            
          arises from an action that is ordinarily to be expected of one in           
          the taxpayer's position.  Commissioner v. Heininger, supra at               
          471.  Although an expense may be incurred only once in a                    
          taxpayer's lifetime, it is ordinary if the transaction that gives           
          rise to it is "of common or frequent occurrence in the type of              
          business" in which the taxpayer is engaged.  Deputy v. DuPont,              
          supra at 495; Welch v. Helvering, 290 U.S. 111, 114 (1933); see             
          also Lilly v. Commissioner, 343 U.S. 90, 93 (1952).                         
               To be "necessary", an expense need only meet the minimal               
          requirement that it be appropriate and helpful for the                      
          development of the taxpayer's business.  Commissioner v. Tellier,           
          supra at 689.  An expense is not to be considered unnecessary               
          simply because the taxpayer could have avoided it by pursuing a             
          different course of conduct.  Mason & Dixon Lines, Inc. v. United           
          States, 708 F.2d 1043, 1044-1045 (6th Cir. 1983).                           
               As respondent concedes that petitioner's payment of the CME            
          fine was not a capital expenditure within the meaning of section            
          263, we need not further consider that aspect of the term                   






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