George G. Green - Page 31

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          Therefore, his deductible expenses are allowed only under section           
          212.                                                                        
               Additionally, petitioner contends that the $365,000 portion            
          of his payment in satisfaction of Allied’s judgment, which                  
          constitutes exemplary damages, is deductible under section 162              
          or, in the alternative, under section 212.  Respondent contends             
          that, because petitioner is not carrying on a trade or business,            
          he is not entitled to deduct the $365,000 payment for exemplary             
          damages.                                                                    
               Payment of punitive damages may be deductible under section            
          162.  See Kornhauser v. United States, 276 U.S. 145 (1928) (legal           
          expenses of taxpayer in defending against claim of former                   
          business partner held deductible); see also Stark v.                        
          Commissioner, T.C. Memo. 1999-1.  Petitioner, however, has                  
          presented inadequate evidence to support his claim that the                 
          payment of punitive damages is deductible in these cases.  There            
          is insufficient evidence explaining the basis of the award                  
          against petitioner or to show that the expense was ordinary and             
          necessary.  Thus, the $365,000 payment to Allied is not                     
          deductible.                                                                 
          Respondent’s Motion To Amend Answer                                         
               Rule 41(a) allows for an amendment to the pleadings after a            
          case has been placed on the trial calendar only “by leave of the            
          Court or by written consent of the adverse party, and leave shall           






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