Toyota Town, Inc. - Page 28





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          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.                                





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