Ivan A. Jasko and Judith L. Jasko - Page 6

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          the earlier sale of the stock.  See also Mosby v. Commissioner,             
          86 T.C. 190, 198 (1986); cf. Neely v. Commissioner, 85 T.C. 934,            
          954-955 (1985).2  That the insurance proceeds produced a gain in            
          and of itself is insufficient to require a different conclusion.            
          The existence of that gain, however, raises the question of how             
          the legal fees should be treated.                                           
               It is well established that expenses that are incurred in              
          either the acquisition or disposition of a capital asset are                
          nondeductible capital expenditures.  Sec. 263; see Wagner v.                
          Commissioner, supra at 915-916.  The destruction of petitioners'            
          residence by the firestorm in effect constituted a disposition of           
          the residence in return for payment of the proceeds of the                  
          insurance.  In this context, the treatment of the legal fees in             
          condemnation cases provides a useful analogy.  A property owner's           
          expenses incurred to increase a condemnation award are                      
          nondeductible capital expenditures under section 263 that serve             
          to reduce the amount of the taxable gain.  Mosby v. Commissioner,           
          supra at 196-197; Casalina Corp. v. Commissioner, 60 T.C. 694,              
          703 (1973), affd. per curiam 511 F.2d 1162 (4th Cir. 1975).  We             
          think that petitioners' legal expenses should be accorded the               
          same treatment since destruction is in a very real sense the                
          equivalent of an involuntary conversion; in either case, the                
          taxpayer loses the property.  We note that our treatment of the             

          2  See also Myers v. Commissioner, T.C. Memo. 1988-160.                     





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