James A. and Debra J. Poyda - Page 6




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          carrying on any trade or business”.  Sec. 162(a).  This includes            
          expenditures for “a sickness, accident, hospitalization, medical            
          expense, * * * or similar benefit plan * * * if they are ordinary           
          and necessary expenses of the trade or business.”  Sec. 1.162-              
          10(a), Income Tax Regs.                                                     
               An ordinary expense is one that relates to a transaction “of           
          common or frequent occurrence in the type of business involved”,            
          Deputy v. du Pont, 308 U.S. 488, 495 (1940), and a necessary                
          expense is one that is “appropriate and helpful” for “the                   
          development of the petitioner’s business,” Welch v. Helvering,              
          290 U.S. 111, 113 (1933).                                                   
               We first address the question whether Ms. Poyda was an                 
          employee of her husband.  Whether an individual is an employee is           
          a question of fact.  See Packard v. Commissioner, 63 T.C. 621,              
          629-630 (1975); Haeder v. Commissioner, T.C. Memo. 2001-7.  To              
          determine whether an employer-employee relationship exists,                 
          courts generally apply a common law agency test.  See Matthews v.           
          Commissioner, 92 T.C. 351, 360-361 (1989), affd. 907 F.2d 1173              
          (D.C. Cir. 1990).  Where a family relationship is involved, close           
          scrutiny is required to determine whether a bona fide employer-             
          employee relationship existed, and whether payments were made on            
          account of such a relationship or instead on account of the                 
          family relationship.  See Haeder v. Commissioner, supra.                    








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