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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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