Chrysler Corporation - Page 12




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               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 of whether the                 
               expense was “business” or “personal” and hence whether                 
               it is deductible or not * * *  [Id. at 49.]                            
               A few years later, a corporation’s right to deduct amounts             
          paid to redeem its stock reached its zenith in Five Star                    
          Manufacturing Co. v. Commissioner, 355 F.2d 724 (5th Cir. 1966),            
          revg. 40 T.C. 379 (1963).  There, the Court of Appeals for the              
          Fifth Circuit permitted a corporation to deduct as an ordinary              
          and necessary expense the cost of redeeming its stock from a                
          50-percent shareholder, Mr. Smith.  Mr. Smith had become deeply             
          indebted to the corporation, and the corporation obtained a                 
          judgment for the amount of the debt.  The corporation later                 
          redeemed Mr. Smith’s shares at a judicial sale and credited those           
          proceeds against his debt.  The Court of Appeals for the Fifth              
          Circuit held that the corporation could deduct the amount that it           
          paid to redeem those shares because the redemption was essential            
          to its survival.  The court explained:  “It can scarcely be held            
          that the payment to Smith was for the acquisition of a capital              
          asset, but rather one which would permit Five Star again to use             
          assets for income production by freeing its management from                 
          unwanted fetters.”  Id. at 727.  In reaching its holding, the               
          court made no reference to United States v. Gilmore, supra.                 









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