Eric Test and Delia Braun - Page 11




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          related to, a business activity.  See Kornhauser v. United                  
          States, 276 U.S. 145, 153 (1928).                                           
               In order to be deductible on Schedule C, an expense must be            
          directly connected with, or proximately result from, a trade or             
          business of the taxpayer.  See id.; O’Malley v. Commissioner, 91            
          T.C. 352, 361 (1988), affd. 972 F.2d 150 (7th Cir. 1992).  If a             
          taxpayer’s trade or business is that of being an employee,                  
          however, then the legal expenses will be treated as an itemized             
          deduction, subject to the limitation of section 67.  See McKay v.           
          Commissioner, 102 T.C. 465 (1994), revd. on other grounds 84 F.3d           
          433 (5th Cir. 1996); Alexander v. Commissioner, T.C. Memo. 1995-            
          51.                                                                         
               The deductibility of legal fees depends on the origin and              
          character of the claim for which the expenses were incurred and             
          whether the claim bears a sufficient nexus to the taxpayer’s                
          business or income-producing activities.  See United States v.              
          Gilmore, 372 U.S. 39 (1963).  The Supreme Court stated that “the            
          origin and character of the claim with respect to which an                  
          expense was incurred, rather than its potential consequences upon           
          the fortunes of the taxpayer, is the controlling basic test”.               
          Id. at 49.  Thus, in order for petitioner’s legal fees to be                
          deductible on her Schedule C, the origin of those legal services            
          must have been rooted in SLS, her Schedule C business.                      
               Petitioners maintain that the legal fees are correctly                 






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