Richard Orin Berge - Page 17

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          business of the taxpayer.  See Kornhauser v. United States, 276             
          U.S. 145, 153 (1928); O’Malley v. Commissioner, 91 T.C. 352, 361            
          (1988).                                                                     
               The deductibility of the legal fees, in the present case,              
          depends on the origin and character of the claim for which the              
          expenses were incurred and whether the claim bears a sufficient             
          nexus to the taxpayer’s business or income-producing activities.            
          See United States v. Gilmore, 372 U.S. 39 (1963).  The Supreme              
          Court stated that “the origin and character of the claim with               
          respect to which an expense was incurred, rather than its                   
          potential consequences upon the fortunes of the taxpayer, is the            
          controlling basic test”.  Id. at 49.  The origin of the claim               
          test is factual, and the factors to be considered include:  (1)             
          Allegations in the complaint; (2) the legal issues involved; (3)            
          the nature and objectives of the litigation; (4) the defenses               
          asserted; (5) the purposes for which the amounts claimed as                 
          deductible were expended; and (6) the background of litigation              
          and all facts pertaining to the controversy.  Boagni v.                     
          Commissioner, 59 T.C. 708, 713 (1973).  Thus, in order for                  
          petitioner’s legal fees to be deductible on his Schedule C, the             
          origin of those legal services must have been rooted in his                 
          business.                                                                   
               In Case No. 814944, filed by petitioner on September 24,               
          1999, in the Superior Court of the State of California, County of           






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