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Mylan Inc. & Subsidiaries v. Commissioner of Internal Revenue (U.S. Tax Court April 27, 2021) Under the Internal Revenue Code (“Code”) Section 162, ordinary and necessary business expenses are deductible, but Code Section 263 disallows a deduction for capital expenditures (“no deduction shall be allowed” for a capital expenditure). Capital expenditures must be capitalized and are generally recovered as depreciation or amortization deductions over a period of years. “Ordinary” expenses are those “customary or usual within a particular trade” and “necessary” if they are appropriate and helpful to the business’ operation. For a typical patent infringement litigation, the litigation costs to both the patentee and the alleged infringer are considered ordinary business expenses, not capital expenses.

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