Sharon Purcell DiLeonardo - Page 16




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               such deductions to “expenses * * * incurred * * * in                   
               carrying on any trade or business,” but also follows from              
               � 24(a)(1), expressly rendering nondeductible “in any case             
               * * * [p]ersonal, living, or family expenses.”  See note 9,            
               supra.  In light of what has already been said with respect            
               to the advent and thrust of � 23(a)(2), it is clear that the           
               “[p]ersonal * * * or family expenses” restriction of                   
               � 24(a)(1) must impose the same limitation upon the reach of           
               � 23(a)(2)–-in other words that the only kind of expenses              
               deductible under � 23(a)(2) are those that relate to a                 
               “business,” that is, profit-seeking, purpose.  The pivotal             
               issue in this case then becomes:  was this part of                     
               respondent’s litigation costs a “business” rather than a               
               “personal” or “family” expense?                                        
                                                                                     
               11 Surrey & Warren, Cases on Federal Income Taxation, 272              
          (1960).                                                                     
               We consider first the origin-and-character-of-the-claim test           
          to determine whether the Payments stemmed from petitioner’s                 
          personality as “a seeker after profit” or from petitioner’s                 
          personality as “a creature satisfying * * * [her] needs as a                
          human”.  United States v. Gilmore, 372 U.S. at 44.  We then                 
          consider whether the Payments are ordinary and necessary expenses           
          of her profit-seeking activity.  Finally, we consider                       
          respondent’s contention about apportionment.                                
          A. Origin and Character of the Claim                                        
               In the instant case it may be helpful to begin by analyzing            
          United States v. Gilmore, supra, and its companion case, United             
          States v. Patrick, 372 U.S. 53 (1963).                                      
               In United States v. Gilmore, supra at 41, the taxpayer                 
          claimed a deduction for certain litigation expenses arising out             
          of the taxpayer’s and his wife’s divorce suit.  The taxpayer’s              






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