Sharon Purcell DiLeonardo - Page 15




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               under * * * [section 162(a)] of an expense paid or incurred            
               in carrying on any trade or business.”  [Estate of Davis v.            
               Commissioner, 79 T.C. 503, 507 (1982) (quoting from H. Rept.           
               2333, 77th Cong., 2d Sess. (1942), 1942-2 C.B. 372, 430; S.            
               Rept. 1631, 77th Cong., 2d Sess. (1942), 1942-2 C.B. 504,              
               571, the legislative history to the predecessor of section             
               212).                                                                  
               For purposes of the instant case, section 212 must be                  
          applied in the light of section 262(a),5 which generally                    
          disallows deductions for personal expenses.  In United States v.            
          Gilmore, 372 U.S. 39, 44, 45-46 (1963), the Supreme Court                   
          described as follows the relevant relationships between the 1939            
          Code predecessors of sections 162(a) (sec. 23(a)(1)), 212 (sec.             
          23(a)(2)), and 262(a) (sec. 24(a)(1)):                                      
                                         I.                                           
                    For income tax purposes Congress has seen fit to regard           
               an individual as having two personalities: “one is [as] a              
               seeker after profit who can deduct the expenses incurred in            
               that search; the other is [as] a creature satisfying his               
               needs as a human and those of his family but who cannot                
               deduct such consumption and related expenditures.”11  The              
               Government regards � 23(a)(2) as embodying a category of the           
               expenses embraced in the first of these roles.                         
                           *    *    *    *    *    *    *                            
                    A basic restriction upon the availability of a                    
               � 23(a)(1) deduction is that the expense item involved must            
               be one that has a business origin.  That restriction not               
               only inheres in the language of � 23(a)(1) itself, confining           

          5    SEC. 262. PERSONAL, LIVING, AND FAMILY EXPENSES.                       
                    (a) General Rule.--Except as otherwise expressly                  
               provided in this chapter [chapter 1, relating to normal                
               taxes and surtaxes], no deduction shall be allowed for                 
               personal, living, or family expenses.                                  






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