P. David Musgrave and Barbara J. Musgrave - Page 18

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          Corp. v. Commissioner, supra at 859.  Based on the record in the            
          instant case, we conclude that the Color Q payment meets all of             
          the requirements of section 162(a).                                         
               Because we have decided that the Color Q payment is an                 
          ordinary and necessary business expense of the S Corporation that           
          is deductible pursuant to section 162(a), we need not consider              
          the parties' arguments regarding the deductibility of the payment           
          as a loss pursuant to section 165.5  We have considered the                 
          parties' remaining arguments concerning the deductibility issue             
          and find them to be without merit.  Consequently, we hold that              
          the Color Q payment is an ordinary and necessary business expense           
          to the S Corporation for its 1988 taxable year.  Accordingly, we            
          conclude that petitioners are entitled to a net operating loss              
          carryforward of $58,020 for their 1990 taxable year attributable            
          to the S Corporation's deduction of the Color Q payment for its             
          1988 taxable year.                                                          


          5    Citing Johnson v. Commissioner, 66 T.C. 897 (1976), affd.              
          574 F.2d 189 (4th Cir. 1978), respondent contends, inter alia,              
          that the S Corporation's "loss" was "compensated for by                     
          insurance" within the meaning of sec. 165.  Johnson is                      
          distinguishable because we concluded in that case that the                  
          taxpayer's insurance policy on the life of his partner "was                 
          intended to compensate the * * * [taxpayer] for the loss of his             
          investment [in the partnership], and that is precisely what it              
          did."  Johnson v. Commissioner, supra at 903.  In the instant               
          case, however, we are satisfied that the S Corporation's life               
          insurance policies in the names of petitioner and Mr. Jeffcott              
          were not purchased to compensate for potential embezzlement                 
          restitution payments.  Consequently, we conclude that, were we to           
          consider the loss issue, Johnson would not be dispositive of the            
          instant case.                                                               




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