Variety Club Tent No. 6 Charities, Inc. - Page 32

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          these circumstances we do not need to determine which side’s                
          stated view of the facts is more likely to be correct.                      
               We hold for petitioner on this issue.11                                
               (2B) Attorney’s Fees--Zerbini                                          
               Respondent notes that petitioner paid $3,000 to Zerbini on             
          August 13, 1986, for Zerbini’s representation in the already-               
          unfolding criminal case.  Relying on petitioner’s admission in a            
          trial memorandum and the Wichita Terminal Elevator Co. doctrine,            
          respondent contends that part of this payment was for Zerbini’s             
          representation of Zeve in the criminal case.  Respondent asserts            
          that “petitioner’s payment of legal fees on behalf of its                   
          individual members and officers acting in their private capacity            
          constitutes private inurement.”                                             
               On brief, petitioner acknowledges that “Zerbini did provide            
          some legal advice to Zeve in conjunction with the proceedings               
          against Petitioner,” but contends that “Petitioner did not pay              
          Zerbini for any legal advice given to Zeve.”  Petitioner points             
          out that “No criminal proceedings were ever instituted against              
          * * * Zeve.”  Petitioner contends that the payment to Zerbini was           
          merely one of the “Ordinary and necessary expenses made in                  



               11   We do not make any determination or state any                     
          conclusion in the instant opinion as to how Climaco’s joint                 
          representation of petitioner, Zeve, and Popovic in the 1987 civil           
          proceeding might affect petitioner’s tax status for years after             
          the last of the years in issue in the instant case.                         





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