P. David Musgrave and Barbara J. Musgrave - Page 11

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               In the instant case, Mr. Jeffcott, an employee of the S                
          Corporation, embezzled approximately $165,000 from Color Q, a               
          client of the S Corporation.  At the time of the embezzlement,              
          Mr. Jeffcott was an employee of the S Corporation and was                   
          providing services to Color Q pursuant to an engagement letter              
          between Color Q and the S Corporation and for which the S                   
          Corporation was paid fees by Color Q.  During the pendency of the           
          complaint in the embezzlement suit, Color Q discovered no                   
          evidence that petitioner had personally participated in Mr.                 
          Jeffcott's wrongful course of conduct.  Additionally, the record            
          contains no evidence and no party alleges that either petitioner            
          or the S Corporation ultimately received any of the embezzlement            
          proceeds, which we take as a concession that the S Corporation              
          did not receive any of the embezzlement proceeds.                           
               Because the S Corporation neither received nor had any claim           
          of right to any of the embezzlement proceeds, we find                       
          respondent's reliance on the Skelly line of cases to be                     
          misplaced.  As the embezzlement proceeds were appropriated by Mr.           
          Jeffcott and not the S Corporation, such proceeds would not be              
          income to the S Corporation.  Consequently, we conclude that the            
          Skelly line of cases is not applicable to the instant case.2                
               Respondent next argues that the Color Q payment was not an             
          "ordinary and necessary" business expense of the S Corporation              

          2    Respondent makes no argument that the deduction of the Color           
          Q payment should be disallowed under sec. 265.                              




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