Joel Baker - Page 10

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          According to petitioner, 1 or 2 days prior to the date of the               
          picnic, he was advised that Avalon would not perform according to           
          the agreement.6  Petitioner then entered into a new contract with           
          A & S Catering (A & S).  Petitioner was informed by the principal           
          of the school that she would not authorize the disbursement of              
          funds to A & S.  Petitioner then paid $2,500 to A & S out of his            
          own funds, and deducted the amount as an unreimbursed employee              
          business expense on Schedule A of his income tax return.                    
               With respect to the $2,500 paid by petitioner to A & S, we             
          note that section 162(a) allows a deduction for all ordinary and            
          necessary expenses incurred in carrying on a trade or business.             
          Generally, the performance of services as an employee constitutes           
          a trade or business.  Primuth v. Commissioner, 54 T.C. 374, 377             
          (1970).  In this regard, petitioner maintains that he may deduct            
          the $2,500 as an ordinary and necessary expense.  The record,               
          however, indicates that petitioner was aware that the school's              
          principal disapproved of the expenditure before petitioner                  
          incurred the expense in question.  We are not persuaded that this           
          expense, incurred with the knowledge that it would not be                   
          approved by his superiors, was ordinary and necessary to                    



          6  Documents in this record are inconsistent with                           
          petitioner's testimony.  Said documents could lead us to the                
          conclusion that petitioner unilaterally terminated the contract             
          with Avalon.  We need not, and do not, decide for purposes of               
          this opinion whether petitioner was at fault or exactly what role           
          petitioner played in the failure of Avalon to perform the                   
          catering services.                                                          



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