45- - and character of the controversy, rather than the potential consequences of the failure to prosecute or defend the litigation. United States v. Gilmore, 372 U.S. 39, 44-51 (1963); Anchor Coupling Co. v. United States, supra at 433. In Freedman v. Commissioner, 301 F.2d 359 (5th Cir. 1962), affg. 35 T.C. 1179 (1961), the Court of Appeals held that the cost of settling a personal injury suit arising out of an accident which occurred while the taxpayer was en route from one place of employment to another was a nondeductible personal expense because the taxpayer was not engaged in his vocation at the time of the accident. Similarly, after applying the "origin of claim" test in Marcello v. Commissioner, 380 F.2d 499, 504-505 (5th Cir. 1967), affg. in part 43 T.C. 168 (1964), the deduction for attorney's fees was denied because the controversy did not originate out of a business activity. Here, by contrast, the origin of the controversy was Dr. Oliver's medical treatment, as a physician, of a child for injuries at his home. Unlike the taxpayers in the Freedman and Marcello cases, Dr. Oliver was acting in his professional capacity when the controversy arose, and therefore the payment in settlement of the lawsuit was a business, rather than personal, expense. Consequently, we hold that petitioners are entitled to deduct the $6,000 paid in 1990 in settlement of litigation as an ordinary and necessary business expense. See Musgrave v. Commissioner, T.C. Memo. 1997-19.Page: Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 Next
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