- 19 - other section of the Code. For an expense to qualify as being paid under an accountable plan, it must be allowed as a deduction under section 162(a). Sec. 1.62-2(d), Income Tax Regs. Mr. Biehl’s attorney’s fee satisfies the threshold requirement of deductibility under section 162(a). It is well settled that the costs of a former employee’s prosecution of a wrongful termination claim are deductible by him as a trade or business expense under section 162(a). McKay v. Commissioner, 102 T.C. 465, 489 (1994), vacated and remanded on another issue 84 F.3d 433 (5th Cir. 1996); Alexander v. Commissioner, T.C. Memo. 1995-51, affd. 72 F.3d 938 (1st Cir. 1995). Section 162(a) allows a deduction for ordinary and necessary expenses incurred in the course of carrying on a trade or business. A taxpayer may engage in the trade or business of “being an employee”. O’Malley v. Commissioner, 91 T.C. 352, 363-364 (1988). In McKay v. Commissioner, supra at 489, we concluded that a former employee’s attorney’s fees in a suit against his former employer were “incurred in the course of carrying on * * * [the taxpayer’s] trade or business” as an employee. Our conclusion was based on the fact that the transaction subject to the litigation “arose in the context of the taxpayer’s trade or business”. Id. at 488 n.23; see also Alexander v. Commissioner, supra.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: May 25, 2011