American Stores Company and Subsidiaries - Page 17




                                        - 17 -                                        
          v. Commissioner, supra at 83-84, explained:                                 
               The primary effect of characterizing a payment as                      
               either a business expense or a capital expenditure                     
               concerns the timing of the taxpayer's cost recovery:                   
               While business expenses are currently deductible, a                    
               capital expenditure usually is amortized and                           
               depreciated over the life of the relevant asset, or,                   
               where no specific asset or useful life can be                          
               ascertained, is deducted upon dissolution of the                       
               enterprise. * * * Through provisions such as these, the                
               Code endeavors to match expenses with the revenues of                  
               the taxable period to which they are properly                          
               attributable, thereby resulting in a more accurate                     
               calculation of net income for tax purposes. * * *                      
               To qualify as an allowable deduction under section 162(a),             
          an item must (1) be paid or incurred during the taxable year, (2)           
          be for carrying on any trade or business, (3) be an expense, (4)            
          be a necessary expense, and (5) be an ordinary expense.                     
          Commissioner v. Lincoln Sav. & Loan Association, 403 U.S. 345,              
          352 (1971).  Respondent argues that the legal fees were neither             
          “ordinary” nor “for carrying on any trade or business” but were             
          expenditures associated with the acquisition of a capital asset.            
               In one sense, the term “ordinary” in section 162 prevents              
          the deduction of expenses that are not normally incurred in the             
          type of business in which the taxpayer is engaged (“ordinary” in            
          the sense of “normal, usual, or customary” in a taxpayer’s trade            
          or business).  Deputy v. Du Pont, 308 U.S. 488, 495 (1940). More            
          importantly, the term “ordinary” serves as a means to “clarify              
          the distinction, often difficult, between those expenses that are           
          currently deductible and those that are in the nature of capital            






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