Frank and Barbara Biehl - Page 31




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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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