Generally, as noted in the letter,
amounts paid in settlement of lawsuits are currently deductible if the acts which gave rise to the litigation were performed in the ordinary conduct of the taxpayer's business. See, e.g., Federation Bank & Trust Co. v. Commissioner, 27 T.C. 960 (1957).But, if the litigation arises from a capital transaction,
then the settlement costs and legal fees associated with such litigation are characterized as acquisition costs and must be capitalized under § 263(a). See Woodward v. Commissioner, 397 U.S. 572, 575 (1970) (holding litigation costs incurred by corporation in appraisal proceedings mandated by state law to determine the value of dissenter’s shares were part of the cost of acquiring those shares); United States v. Hilton Hotels Corp., 397 U.S. 580, 583 (1970); (similarly, deciding that litigation costs incurred in appraisal action to determine fair purchase price were costs to acquire property); Berry Petroleum Co. v. Commissioner, 143 F.3d 442 (9th Cir. 1998)(concluding that legal expenses to defend class action lawsuit alleging breach of fiduciary duty in accomplishing merger were nondeductible acquisition costs).Certain business expenses are not converted into capital expenditures even though they have some connection to a capital transaction. In determining whether litigation costs are deductible expenses or capital expenditures, the courts and the IRS have looked to the "origin of the claim" test.
The acquiring corporation:
claimed that the settlement costs were deductible as ordinary and necessary business expenses because the complaints were the product of an ongoing dispute between target's shareholders and the taxpayer, as controlling shareholder of target, for withholding dividends, issuing fraudulent and incomplete financial statements, and artificially depressing its stock price.As a result, the acquiring corporation argued these claims were related to ordinary course business activities, and did not originate in the merger of the two companies or any other capital acquisition.
The IRS agreed, holding that:
Under these circumstances, we believe that the origin of these claims was in the ordinary conduct of [the target company's] trade or business.The ruling, as with most letter rulings by the IRS, is directed only to the taxpayer requesting it and is not precedential in other cases.
Daily Trivia: The origin of the IRS can be traced back to the Civil War, when President Lincoln and Congress created the position of commissioner of Internal Revenue and enacted an income tax to pay war expenses. In 1872, the income tax was repealed, but in 1894 Congress revived the income tax in 1894, only to have the Supreme Court rule it unconstitutional the following year. The country remained without a federal income tax until 1913, when Wyoming ratified the 16th Amendment, which gave Congress the authority to enact an income tax.