Harold Levinson Associates, Inc. - Page 7

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               or a capital outlay and not whether a payment is a                     
               deductible business expense.  We disagree.  Although                   
               the two questions are admittedly different,                            
               substantially the same problems arise in each                          
               determination.  Thus in both cases the court must                      
               determine the tax consequences of monetary outlays made                
               in connection with contesting a claim on the taxpayer's                
               assets.  * * *                                                         

          To determine the origin of the claim, the Court must consider               
          "the issues involved, the nature and objectives of the                      
          litigation, the defenses asserted, the purpose for which the                
          claimed deductions were expended, the background of the                     
          litigation, and all facts pertaining to the controversy."  Boagni           
          v. Commissioner, 59 T.C. 708, 713 (1973)); Saltzman v.                      
          Commissioner, T.C. Memo. 1994-641.                                          
               United States v. Wheeler, 311 F.2d 60 (5th Cir. 1962), is              
          instructive here.  The taxpayer owned controlling stock interests           
          in 3 corporations.  He first entered into negotiations to sell              
          the stock to an individual named Cage, but upon learning                    
          (mistakenly) that Cage had lost interest, the taxpayer entered              
          into a sales agreement with Ainsworth.  Id. at 61.  After signing           
          the latter contract, the taxpayer discovered that Cage was still            
          interested in purchasing the stock.  The taxpayer also feared               
          that "Ainsworth would probably 'bleed' the corporate assets" dry.           
          To prevent that, the taxpayer refused to sell his stock.                    
          Ainsworth sued, alleging breach of contract and requesting                  







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