- 21 - expenses, and respondent applies that testimony to conclude that Mr. Ashare was overcompensated in each of the years relevant herein and entitled to no compensation for 1993. Respondent notes that 1993 was the last year from which petitioner could carry back an NOL to 1990 to recover the Federal income taxes paid for that year, see sec. 172(b)(1) (a carryback of an NOL such as the one at hand is limited to the prior 3 years), and argues that the main reason for the $1,750,000 payment was to recover those taxes. Respondent notes that petitioner had a significant deficit in retained earnings on December 31, 1993. We agree with petitioner that it may deduct the $1,750,000 because it paid the amount to Mr. Ashare to compensate him for work on the Gentile case. Up until the time that the Gentile case was settled in 1989, Mr. Ashare, on behalf of petitioner, had performed significant services on that case to entitle the class to receive the $70 million settlement payment. Afterwards, petitioner, and hence, Mr. Ashare, was obligated to perform significant services in administering the proper disposition of that $70 million payment. But for Mr. Ashare, petitioner never would have received the $12,567,623 of legal fees in the first place. But for Mr. Ashare, petitioner would never be able to dispose of the settlement funds properly. Given the necessity and indispensability of Mr. Ashare's services on the Gentile case, we do not believe it unreasonable to conclude, as we do,Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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