Legal Fees Capital or Revenue

Statutory and other expenses are not explicitly mentioned in the Code as deductible. Therefore, a taxpayer can only deduct these types of expenses if they are considered „ordinary and necessary” expenses within the meaning of section 162 (operating expenses) or „expenses related to the generation of income”. Expenses that are not considered deductible under section 162 or section 212 are either non-deductible personal expenses or capitalized expenses. The origin of rights test meets certain fundamental principles of good tax policy. As the Court stated in Gilmore, „if the relative impact of a claim on a taxpayer`s income-generating resources were to determine deductibility, the rule would contain significant uncertainty and unfairness.” 29 The classification of lawyers` fees on the basis of the origin of a claim, rather than on the basis of the assets which must be protected, tends to lead to taxpayers being treated in a similar manner and to increase the objectivity of the law. Example 13: The facts are the same as in Example 12, except that X considers that the settlement payment made to him by T and his former employee causes the payment to have received a repayment agreement under section 62(a)(2)(A). X`s argument is rejected because there is no repayment plan (as under paragraphs 62(a) and (c) and related provisions) and X`s legal fees for his services as an employee were not paid (they were paid for him to recover damages). Since there is no accounting regime for legal fees, they are not a deduction for AGIs, but as employment-related expenses, they are a miscellaneous individual deduction.18 Expenses reimbursed must be incurred during the period of employment and on behalf of the employer (among other requirements) to be considered paid under an accounting regime.19 Agree, What difference does it make? A big one. If Mylan determines that the lawyers` fees are ordinary business expenses, it can deduct those expenses as soon as they are incurred (which they did on their tax returns in a timely manner for those years). Otherwise, Mylan will have to cover its legal fees over a period of fifteen years by depreciations and depreciations (ouch!). Since Mylan has currently deducted the fee as an ordinary business expense, Mylan will also incur interest and penalties (salt in the wound) if the service ultimately prevails and these deductions are denied. Examples of attorneys` fees and expenses that are critical in nature include: If the origin of a claim that caused the attorney`s fees is personal, the fees are not deductible (under section 262).

However, if the origin is linked to taxable income or comes from a commercial or entrepreneurial activity, it is likely to be deductible. The following examples illustrate situations where the origin of attorneys` fees was personal or related to the preservation of property held to generate income or used in a trade or business. The case cited above, Romsey`s Strong & Co v. Woodifield, is over a hundred years old, but there are still cases that deal with the issues mentioned in this article. Take, for example, the 2014 case of P McMahon v. HMRC, which concerned the costs of defending a claim brought by a former employer. Mr. McMahon left his employment relationship with Quantica plc and became independent in the same sector. The company later sued him, alleging that he had violated an agreement not to contact or solicit any of his former employer`s customers. Mr McMahon agreed to pay £100,000 to settle Quantica`s claim.

He then claimed the £100,000 plus related legal fees on his tax return. HMRC denied the application on the ground that the expenses had not been wholly and exclusively incurred for the purposes of Mr McMahon`s business. Example 11: M acted as executor of the estate of a deceased friend. The friend`s son brought an action against M., alleging that she had fraudulently induced the father to withdraw the son as a beneficiary of a life insurance policy and make it a charitable foundation the beneficiary. This lawsuit was settled, with M receiving $20,000 from the trust (which she reported as income). M then brought an action against the son for malicious prosecution. She won and received real and punitive damages. M cannot deduct the fees of his lawyers engaged in both cases because they arise from their personal relationship with the deceased and his son. Her status and fees as executor, as well as her administration of the estate, were not contested. All the accusations stemmed from M`s relationship with his father, which arose before his death. In the second action, M sought only personal justification to compensate for the damages caused by the first action.16 This new provision was intended to award relief under section 67 and the LMO to many successful litigants who receive taxable awards and settlements. However, the provision is not exhaustive, and there are still types of arbitral awards for which attorneys` fees continue to be treated as sub-line deductions, which are subject to the 2% AGI limit for various deductions and are not eligible for LMO.

Example 1: B incurs legal fees to defend a title challenge to his rental property. The origin of the debt that gives B legal fees is the protection of his investment property. Thus, B must pay the taxes in accordance with section 263.7 The fundamental principles governing the examination of the eligibility of expenses, in particular the comprehensive and exclusive test and the distinction between capital and income, must also be taken into account in deciding whether legal costs, penalty or court costs may be deducted for tax purposes.