- 40 - The ascertainment of a claim's origin and character is a factual determination that must be made on the basis of the facts and circumstances of the litigation. See United States v. Gilmore, supra at 47-49. The most important factor to consider is the circumstances out of which the litigation arose. See Guill v. Commissioner, supra; Boagni v. Commissioner, 59 T.C. 708 (1973). In passing on this factor, the fact finder must take into account, among other things, the allegations set forth in the complaint, the issues which arise from the pleadings, the litigation's background, nature, and purpose, and the facts surrounding the controversy. See Guill v. Commissioner, supra; Boagni v. Commissioner, supra at 713. B. Squirrel Bend Litigation Petitioner argues that (1) the origin of the claim in the Squirrel Bend litigation was Mr. Davis' sale of Big Bite stock to Mr. Hyrne, and (2) this was directly related to Mr. Davis' trade or business of promoting Big Bite. Respondent counters that the origin of the claim was the construction of the waterline at Squirrel Bend. We agree with respondent. The Squirrel Bend litigation was a mail fraud case. Mr. Davis used the U.S. mail to transmit documents associated with the construction of the waterline at Squirrel Bend. The indictment alleged that he improperly inflated the cost of the waterline. Mr. Davis was not charged with bribing Mr. Hyrne.Page: Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Next
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