19 deduct as a business bad debt that part of the settlement payment attributable to petitioner's guaranty. 3. Whether Petitioners May Deduct the Settlement Payment under Section 162 Petitioners argue in the alternative that they may deduct under section 162 their payments to settle the Northeast litigation and the adversary proceeding. A taxpayer may deduct ordinary and necessary expenses paid or incurred in carrying on a trade or business. Sec. 162(a). Petitioners argue that O'Malley v. Commissioner, 91 T.C. 352, 361-362 (1988), supports their contention that they may deduct the settlement payment since they paid it to settle an action against petitioner that proximately resulted from his business activity. We agree as to the portion of the settlement not allocable to the guaranty because bad debts cannot be deducted under section 162. See Horne v. Commissioner, 59 T.C. 319, 336 (1972), affd. 523 F.2d 1363 (9th Cir. 1975); Smith v. Commissioner, 55 T.C. 260, 267 (1970), vacated on other grounds and remanded 457 F.2d 797 (5th Cir. 1972) (section 162 does not apply to debts resulting from a taxpayer's loan guaranty). The taxpayer in O'Malley made payments which were directly connected with his trade or business as an employee of a trucking company. Similarly, petitioner's payment to settle claims brought against him by Northeast's creditors other than the bank originated in petitioner's conduct of his duties as anPage: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
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