P. David Musgrave and Barbara J. Musgrave - Page 12

                                       - 12 -                                         
          within the meaning of section 162(a).  To qualify as an allowable           
          deduction pursuant to section 162(a), "an item must (1) be 'paid            
          or incurred during the taxable year,' (2) be for 'carrying on any           
          trade or business,' (3) be an 'expense,' (4) be a 'necessary'               
          expense, and (5) be an 'ordinary' expense."  Commissioner v.                
          Lincoln Sav. & Loan Association, 403 U.S. 345, 352 (1971).                  
               Petitioners contend that the Color Q payment was deductible            
          by the S Corporation based on the application of the "origin of             
          the claim" doctrine (see United States v. Gilmore, 372 U.S. 39              
          (1963)).3  Citing James E. Caldwell & Co. v. Commissioner, 234              
          F.2d 660 (6th Cir. 1956), revg. 24 T.C. 597 (1955), and Ostrom v            
          Commissioner, 77 T.C. 608 (1981), petitioners argue that the                
          Color Q payment was an ordinary and necessary expense of the S              
          Corporation because the embezzlement suit arose out of the                  
          ordinary business operations of the S Corporation.                          
               Respondent argues that James E. Caldwell & Co. v.                      
          Commissioner, supra, stands for the proposition that a judicial             
          determination of liability is required for deductibility pursuant           
          to section 162(a), quoting Judge Bruce’s dissent, "It is not the            
          petitioner's culpability but his liability that determines his              
          right to the deduction".  James E. Caldwell & Co. v.                        

          3    The Supreme Court held that "the origin and character of the           
          claim with respect to which an expense was incurred, rather than            
          its potential consequences upon the fortunes of the taxpayer, is            
          the controlling basic test of whether the expense was 'business'            
          or 'personal' and hence whether it is deductible or not under �             
          23(a)(2)."  United States v. Gilmore, 372 U.S. 39, 49 (1963).               




Page:  Previous  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  Next

Last modified: May 25, 2011