- 31 - 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. PetitionersPage: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
Last modified: May 25, 2011