Chrysler Corporation - Page 17




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               The flaw in the Five Star exception is that it requires                
               the trier of fact to look to the primary purpose of the                
               transaction in order to determine if an otherwise                      
               capital expenditure can be treated as an ordinary and                  
               necessary business expense under section 162.  While                   
               the Fifth Circuit purported to look to the nature of                   
               the transaction, its ultimate focus was on the purpose                 
               or business reasons for which the stock was purchased.                 
               Petitioner’s argument is permeated by the same flaw that, as           
          we observed in Frederick Weisman Co., was present in the “Five              
          Star exception”.  According to petitioner, the origin and nature            
          of Chrysler’s costs of redeeming its common stock arose in the              
          context of a union demand for compensation on behalf of the                 
          employees.  Therefore, petitioner concludes, the costs patently             
          constitute an ordinary and necessary expenses of doing business,            
          deductible under section 162(a).  We disagree.  Although                    
          petitioner’s argument purports to look to the nature of the                 
          redemption transaction, its ultimate focus is on its purpose or             
          business reasons for which the Chrysler common stock was                    
          redeemed.  As we noted in Frederick Weisman Co. v. Commissioner,            
          supra at 572-573:  “The Supreme Court in Woodward and Hilton                
          Hotels, and more recently in Arkansas Best Corp., has made it               
          clear that this line of inquiry is inappropriate.”  Thus, as our            
          opinion in Frederick Weisman Co. v. Commissioner, supra, makes              
          clear, redemption payments such as these simply are not ordinary            
          and necessary business expenses deductible under section 162(a).            









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