Horace D'Angelo - Page 21

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          necessary business expenses incurred in the course of                       
          petitioner’s trade or business.                                             
               The second portion of the disputed legal expenses, $90,392,            
          was incurred by petitioner with respect to Oakland 1 and Oakland            
          2.  Oakland 1 was brought against Pomeroy and others, and                   
          involved claims of diversion of Arbor funds to Pomeroy’s own                
          management company, failure to pay to Arbor the management fees             
          to which it was entitled, and breach of fiduciary duty.  The                
          remedies sought in that proceeding included restitution and                 
          exemplary damages.  Claims in Oakland 2 focused on the alleged              
          breach of fiduciary duty by petitioner and Pomeroy, and their               
          purported financial manipulation of Crittenton through “corporate           
          instrumentalities” which included H.K. Peach, Arbor, and PNC.               
          This proceeding also involved claims of failure to pay rent on              
          the part of PNC and failure to make partnership contributions by            
          H.K. Peach.                                                                 
               For reasons similar to those described above as to the $770,           
          we conclude that the Lincoln Sav. & Loan Association test has               
          been met as to the $90,392.  Our analysis of the origin of the              
          claim test here is also similar to that of the fees relating to             
          Oakland 3.  We find that in Oakland 1, petitioner’s position                
          originated from his desire to negate the claims of breach of                
          fiduciary duty and diversion of fees.  In addition, he                      
          counterclaimed against Pomeroy under the same theories.                     






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