Stephen D. Podd - Page 50

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          when the payments were not shown by the Commissioner to be illegal          
          and the taxpayer established that the payments were ordinary and            
          necessary business expenses.  See Brizell v. Commissioner, supra.           
          In the instant case, however, petitioners consistently characterize         
          the payments to SCS as consulting fees, and they do not contend that        
          the payments are deductible as legal kickbacks.  Moreover, even had         
          they made such a contention, they have failed to produce any                
          evidence which would suggest that kickbacks are normal and customary        
          in the container liner industry.  See id. at 157 (kickbacks found to        
          be ordinary within the meaning of section 162(a) where the record           
          contained ample evidence that such payments were common in the              
          printing industry); Frederick Steel Co. v. Commissioner, 42 T.C. 13         
          (1964), revd. on other grounds 375 F.2d 351 (6th Cir. 1967)                 
          (commercial bribes not ordinary because there was no reliable               
          evidence that other similar arrangements or practices were common in        
          the industry); United Draperies, Inc. v. Commissioner, 41 T.C. 457          
          (1964), affd. 340 F.2d 936 (7th Cir. 1964) (taxpayer failed to show         
          that it normally made such payments or that such payments were              
          commonly made in the industry).                                             
               Based on the record before us, we conclude that petitioners            
          have not established that Mr. Clark (individually or through SCS)           
          provided any services to Powertex beyond those he provided in his           
          capacity as an employee of Sea-Land.  Consequently, we hold that            








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