- 28 - deductibility of amounts paid or incurred for insurance under section 162.” Sec. 1.461-4(g)(5)(ii), Income Tax Regs. The arrangements between petitioners and Western General involved an insurance risk (namely, the risk of loss associated with the liability assumed by the seller of an EWA), the shifting of that risk from each petitioner to Western General (as the parties have stipulated that the risk of loss under the EWA’s passed from petitioners to Western General once petitioners made payment to Western General), and the distribution or pooling of that risk (since the record establishes that Western General assumed the risks of multiple sellers of EWA’s). Thus we believe petitioners purchased “insurance” from Western General for purposes of section 162. Cf. Sears, Roebuck & Co. v. Commissioner, 96 T.C. 61, 100-101 (1991), affd. in part, revd in part and remanded on another issue 972 F.2d 858 (7th Cir. 1992). We also note that applicable State law requires retail automobile dealers, such as petitioners, that sell vehicle service contracts incident to automobile sales either to purchase insurance covering their liabilities under such contracts or to become insurers subject to the provisions of the California Insurance Code and regulation by the California Department of Insurance. See Cal. Ins. Code sec. 116(c) (West 1993); Clemens v. American Warranty Corp., 238 Cal. Rptr. 339, 344-345 (Ct. App. 1987). Petitioners state on brief that they are not in the insurance business.Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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