Stephen S. Wang, Jr. - Page 13

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          within the scope of his employment.  Petitioner violated his                
          confidentiality agreement with Morgan Stanley by disclosing and             
          using for his personal gain confidential information that he                
          acquired through his employment.                                            
               Respondent attempts to analogize petitioner’s actions to               
          those of an employee who embezzles money from his employer.                 
          Repayment of embezzled funds is not an ordinary and necessary               
          business expense of being an employee because an embezzler does             
          not act in the course of his employment when taking the money.              
          See, e.g., Yerkie v. Commissioner, 67 T.C. 388, 393-394 (1976);             
          Morrison v. Commissioner, T.C. Memo. 1981-617; Whitler v.                   
          Commissioner, T.C. Memo. 1980-214.  Petitioner’s use and                    
          disclosure of the insider information was not in connection with            
          or furtherance of his employment or for a business purpose of his           
          employer, Morgan Stanley.  Cf. O’Malley v. Commissioner, 91 T.C.            
          352, 363-364 (1988) (bribery charge against taxpayer related to             
          his employment because bribe advanced purposes of employer                  
          although taxpayer's employer did not instruct him to offer                  
          bribe).  While petitioner’s sale of insider information was                 
          facilitated by his employment, it was not directly or proximately           
          related to his job at Morgan Stanley.  Petitioner is not entitled           
          to deduct the legal fees or disgorgement as business expenses of            
          being a financial analyst.                                                  







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