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that is governed by the origin of the claim test, the test that
concerns the general deductibility of expenses under section
162(a) or section 212. See United States v. Gilmore, 372 U.S.
39, 49 (1963); Test v. Commissioner, T.C. Memo. 2000-362;
McKeague v. United States, 12 Cl. Ct. 671, 674 (1987).
Deductibility under section 162(a), as we have already discussed,
is the threshold requirement for an accountable plan specifically
and for section 62(a) generally. The attorney’s fee paid by NCMI
to Mr. Biehl’s attorney was clearly attributable to Mr. Biehl’s
trade or business of being an employee and is deductible under
section 162(a). See McKay v. Commissioner, 102 T.C. 465 (1994);
Alexander v. Commissioner, T.C. Memo. 1995-51. The fact that the
attorney’s fee somehow may have been “spawned” by the performance
of prior services is much too tenuous a connection. The
attorney’s fee incurred in the prosecution by a former employee
of a wrongful termination claim is simply too far removed from
the performance of an employee’s regular duties to have been
incurred “in connection with the performance by him of services
as an employee” of the employer.
Despite the lack of an employer-employee relationship
between Mr. Biehl and NCMI when the attorney’s fee was incurred
and paid, petitioners insist that the settlement agreement and
the shareholders agreement establish an “arrangement” pursuant to
which NCMI reimbursed Mr. Biehl’s attorney’s fee. Petitioners
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