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The payments were for repairs, maintenance, and capital
improvements for jointly owned property paid entirely by one of
the owners. In contrast to this case, the Commissioner conceded
in Conte that the taxpayer could deduct real estate taxes and
mortgage interest to the extent he paid them because he was
jointly and severally liable for those obligations. Conte v.
Commissioner, supra.
Unlike this case, in none of those cases did the court find
that reimbursement would be highly unlikely. In Estate of Boyd
and Conte we did not consider the probability that the taxpayers
would be reimbursed. In Levy, the court found that the taxpayers
did not show that they could not have enforced their right to be
reimbursed. Levy v. Commissioner, supra at 554.
Petitioner and his former spouse are jointly and severally
liable for the mortgage interest and property taxes at issue.
Petitioner could lose the properties if the mortgage interest and
property taxes were not paid. Taxpayers may deduct the payment
of expenses for which they are not liable if necessary to protect
their property interests. Dunn & McCarthy, Inc. v. Commissioner,
139 F.2d 242, 244 (2d Cir. 1943); Waring Prods. Corp. v.
Commissioner, 27 T.C. 921, 929-930 (1957); Catholic News
Publishing Co. v. Commissioner, 10 T.C. 73, 77 (1948).
We conclude that petitioner may deduct the amount he paid
for his former spouse’s share of mortgage interest and real
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