Breathalyzer Machine

[Black Bart]

Good post -- thanx Hoffman,

erchess, you totally crack me up LOL!!!!!!

The smiley is created by using a colon and a close parenthesis like this : )
but without the spaces in between


But, you just don't seem to be an overt "smiley" kind of guy to me. You might like the more subtle "wink" better. If you'd care to create a "wink", use a semicolon and a close parenthesis like this ; ) but no spaces

Some more stuff I didn't know.

P.S. ...giving it a shot...

[erchess]

Serious Question

When the courts make someone put a breathalyzer machine on their car, to whom do they make payment? If payment is made to the court or to the police department then there doesn't seem to be any wiggle room but if the payment is made to a private business then it seems to me that the deduction in question might stand up. In the real world, when you weigh the consequences of it not standing up, you don't claim the expense without proper disclosure and probably not even with disclosure. But I am not the first person on this board to get away from reality just a little and ask "what if?". I would also like to point out that no one has quoted an authority to the effect that a breathalyzer machine in particular or anything you are ordered by a court to buy can't ever be deductible.

[veritas]

Irc 162

"There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—"

[erchess]

Yes Veritas

However what "ordinary and necessary" means in English has never been crystal clear to me. I understand that it depends on facts and circumstances. I somewhere got the idea that you were ok deducting an expense if over half of people in similar situations make that expenditure. I would have thought that part of the definition of similar situation in this case would be that they have driven drunk and been ordered by a court to put a breathalyzer on their car. The real fly in the ointment for this taxpayer is that drunk drivers are unpopular and the IRS doesn't have to apologize for taking the position that if you have an expense due to the fact that you are a convicted drunk driver they are going to do all they can to stop you from claiming a tax advantage out of that expense. So in other words if you are going to deduct it you better have black letter law that says you can or willingness to fight a long court fight. And your preparer better disclose and be sure his E & O is paid up.

What I would really tell a client in this case is that the what, few hundred dollars of tax savings involved are not worth running the odds (given that I would have to disclose) of ending up in a court fight with the IRS. I would also say something like "Look, you not only got drunk which could have been between you and your family and friends, you repeatedly got caught driving in that state and society is out to slap you down at every opportunity. You should thank your lucky stars that your lawyer was good enough so things are not worse for you." My opinion that the guy is a sick individual to be viewed with compassion or that he is a piece of no good sleaze does not change the fact that if I take him on as a client I have to help him get the best possible tax outcome the facts of his case allow. Quite frequently that involves telling people they can't deduct things someone else told them they could.

[joanmcq]

I did get lawyers fees to defend a drunk driving case accepted in audit where the guy was an outside salesman who needed a car to earn a living, and won the case.

Not that I would argue in favor of deducting the breathalyzer though.

[erchess]

Similar Case but with a twist

Take the case of a Pharmacist who is twice convicted of DUI while off duty. No suspicion the person has ever been under the influence while working and no suspicion on the part of the police that he has ever abused drugs other than alcohol. He ends up paying legal fees and fines and say he knows they are not deductible.

Say his automobile insurance rates went up and he continued to have a good bit of business mileage and because it was an expensive car that didn't get much gas mileage actual expenses far outweighed standard mileage. (Say he worked at one store, his regular work location, on average two days a week and on average three or four days a week he worked a day here and two days there at probably a dozen different locations as much as 120 miles away and always returned home at night. So we're only claiming the latter mileage but it adds up to over half of what he drove the car and yes he has good records.) Could he claim the business percentage of the DUI Inflated Insurance rate?

Say the Pharmacy board was concerned about the DUI Convictions so for a while he had to pay about 3K a year for a program that randomly tested him for use. Can this be a deductible expense?