Jane B. Oliver and Robert P. Oliver - Page 45

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          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.                                           




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