Pelton & Gunther, Professional Corporation - Page 8




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               If you are a cash method taxpayer who pays an expense                  
               and then recovers any part of the amount paid in the                   
               same tax year, reduce your expense deduction by the                    
               amount of the recovery.  If you have recovery in a                     
               later year, include the recovered amount in income.                    
               * * *                                                                  
               Petitioner’s reliance on that publication is unwarranted               
          because the excerpt relied upon assumes that the expenditure is             
          deductible in the first instance.  The material relied on by                
          petitioner does not address the critical preliminary question of            
          whether the costs advanced were loans or expenses.  Reliance on             
          the Commissioner’s publication, in this instance, is misplaced              
          because it does not contain guidance on the question of which               
          costs, payments, or disbursements constitute a deductible                   
          expense.4                                                                   
               Respondent, in the notice of deficiency, disallowed                    
          petitioner’s claimed deduction of litigation costs for 1993.                
          Respondent also reversed petitioner’s 1993 income inclusion                 
          attributable to reimbursement of litigation costs deducted in               
          prior years (including 1992).  Finally, respondent determined               
          that section 481 applied, and so the reimbursement income                   



               4  Assuming arguendo that the publication was applicable to            
          the question of whether or not advanced costs are deductible, the           
          statement relied on by petitioner is the statement of a legal               
          principle (i.e., Tax Benefit Rule).  Because a necessary element            
          for estoppel is that there be reliance on a factual statement,              
          the circumstances here would not satisfy that necessary                     
          prerequisite.  See Estate of Emerson v. Commissioner, 67 T.C.               
          612, 617-618 (1977).                                                        





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