- 14 - Issue 2. Deductibility of Bankruptcy Fees Petitioner contends that he may deduct the bankruptcy fees he paid as ordinary and necessary business expenses under section 162 because his bankruptcy was caused by a combination of the failure of MACAT and the lawsuits stemming from his legal practice. Ordinary and necessary expenses paid or incurred during the year in carrying on a trade or business are deductible under section 162(a). However, personal, living, or family expenses are disallowed under section 262. Whether an expense is a deductible trade or business expense, or a nondeductible personal, living, or family expense, depends on the origin of the claims giving rise to the fees. See United States v. Gilmore, 372 U.S. 39 (1963). 13(...continued) posttrial brief. Petitioner concedes that the limitation is applicable in this case, but contends that this issue was raised too late for it to be properly considered. We disagree. “[T]he Commissioner does not necessarily forfeit his right to rely on a theory by failing to raise it at the preferred times. ‘The basic consideration is whether the taxpayer is surprised and disadvantaged * * * .’” Stewart v. Commissioner, 714 F.2d 977, 986 (9th Cir. 1983) (quoting Commissioner v. Transport Manufacturing & Equip. Co., 478 F.2d 731, 736 (8th Cir. 1973)). Petitioner was not surprised or disadvantaged by respondent’s tardiness. Respondent placed the deductibility of the mortgage interest at issue when he denied petitioner’s deduction. Additionally, sec. 163(h) is an express statutory limitation that is mechanically applied, and there are no underlying facts in dispute. See Levy v. Commissioner, T.C. Memo. 1991-646 (permitting the IRS to challenge the taxpayer’s method of calculating its depreciation deduction even though issue was first raised in the Commissioner’s posttrial brief).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
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