- 12 - 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.Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
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