P. David Musgrave and Barbara J. Musgrave - Page 14

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          Corporation was paid fees by Color Q.  The embezzlement suit was            
          brought by Color Q to recover the money allegedly embezzled by              
          Mr. Jeffcott while he was providing services as an S corporation            
          employee to Color Q.  Under such circumstances, we conclude that            
          the embezzlement suit arose out of activities of the S                      
          Corporation's business.                                                     
               Respondent next argues that the S Corporation did not                  
          "substantively pay" Color Q, and that the S Corporation therefore           
          did not, within the meaning of section 162, "pay" or "incur" an             
          "expense" during 1988 with respect to the settlement of Color Q's           
          claim.  Although respondent acknowledges that "the [Color Q]                
          payment was routed through the S Corporation's checking account             
          on November 16, 1988", respondent nonetheless argues that "the              
          amount paid to Color Q was not reduced to the S Corporation's               
          possession, and neither the [Montgomery County Court] nor the               
          other parties intended that it be reduced to the S Corporation's            
          possession."                                                                
               We think that respondent's focus on the source of the funds            
          used to make the Color Q payment is misplaced.  The fact that the           
          parties to the insurance suit agreed that the insurance proceeds            
          would be used to settle the embezzlement suit does not diminish             
          the fact that the S Corporation ultimately issued its own check4            

          4    As set forth above in our findings of facts, the record                
          contains a check drawn on the S Corporation's account to Color Q            
          et al. in the amount of $193,500 in full settlement of the                  
                                                             (continued...)           




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