Alan G. Bone and Kathleen A. Bone - Page 17




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          have not provided the means for the Court to delineate which                
          insurance payments, if any, AJCS is entitled to deduct or were              
          ordinary and necessary expenses of AJCS’s business.                         
               Another complicating factor is that AJCS claimed insurance             
          expenses under several different categories on its tax returns.             
          It is impossible to tell from the evidence whether the checks               
          petitioners submitted are already claimed on AJCS’s 1993 tax                
          return as insurance under other deductions or whether they are              
          included in other general categories.  Finally, the record in               
          this case does not reveal whether the amounts in dispute are                
          AJCS’s expenses or more properly those of the affiliates.11                 
               Petitioners have failed to show that AJCS is entitled to               
          deduct workmen’s compensation expenses of $269,815, and,                    
          accordingly, we hold for respondent on this issue.12                        






               11 Considering the fact that AJCS transferred its                      
          construction contracts to the four affiliates at the beginning of           
          1993 and began operating solely as a management company, it is              
          more likely that the affiliates, and not AJCS, incurred ordinary            
          and necessary workmen’s compensation insurance expense.  We must            
          note, however, that East was the only affiliate that obviously              
          claimed a deduction for workmen’s compensation insurance during             
          the period under consideration.                                             
               12 Respondent also contends that AJCS is not entitled to the           
          deduction because there had been no economic performance as                 
          required by sec. 461(h) and the regulations thereunder.  Because            
          of our conclusion above, however, it is unnecessary for us to               
          consider this argument.                                                     





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