- 4 - 1992, which they claimed as a miscellaneous deduction on their 1992 return. At the outset, we note that we have no direct evidence that petitioners realized taxable gain, i.e., an excess of the insurance proceeds over cost, from their receipt of replacement cost under the insurance policy. Sec. 1033(a)(2); see Central Tablet Manufacturing Co. v. United States, 417 U.S. 673, 676 (1974); Tobias v. Commissioner, 40 T.C. 84, 95 (1963). However, neither party has suggested that a gain is not involved herein, and we think that the existence of a gain is a permissible premise upon which to base our analysis and decision herein.1 The issue before us is whether petitioners are entitled to deduct the $25,000 legal fees under section 212(1) which provides in pertinent part: In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year-- (1) for the production or collection of income; Respondent contends that petitioners' home was not held for the production of income and, thus, the legal fees incurred by petitioners were incurred to recover a loss, not for the production of income, and are therefore not deductible. 1 No gain was reported on petitioners' 1992 return based on the payment received in that year. It appears that petitioners were waiting until the expiration of the applicable period in which to replace the residence without current recognition of gain. See sec. 1033(a)(2).Page: Previous 1 2 3 4 5 6 7 8 Next
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