American Stores Company and Subsidiaries - Page 16




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          California’s antitrust suit.  Respondent disallowed $1,074,867 of           
          deductions for legal fees claimed for the 1989 tax year and                 
          disallowed separate deductions of $2,666,045 and $175,630 for               
          legal fees claimed for the 1990 tax year.                                   
                                      Discussion                                      
               The issue for decision is whether legal fees incurred in               
          connection with the State of California’s antitrust litigation              
          are deductible as ordinary and necessary business expenses under            
          section 162.2  Respondent determined that the legal fees must be            
          capitalized pursuant to section 263(a).  Petitioner argues that             
          the legal fees were postacquisition expenditures incurred in                
          defending its business operations.                                          
               Income tax deductions are a matter of legislative grace, and           
          the burden of clearly showing the right to the claimed deduction            
          is on the taxpayer.  See Rule 142(a); INDOPCO, Inc. v.                      
          Commissioner, 503 U.S. 79, 84 (1992).  Moreover, deductions are             
          strictly construed and allowed only “as there is clear provision            
          therefor.”  INDOPCO, Inc. v. Commissioner, supra at 84 (quoting             
          New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934)).               
               The principal difference between a deduction and an item               
          that must be capitalized and amortized is the timing of the                 
          recovery of the expenditure.  The Supreme Court in INDOPCO, Inc.            

               2Unless otherwise indicated, section references are to the             
          Internal Revenue Code applicable to the subject years, and Rule             
          references are to the Tax Court Rules of Practice and Procedure.            





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