- 50 - 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 thatPage: Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Next
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