Robert Joseph Looby and M. Patricia Looby - Page 7

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                    (3) in connection with the determination, collection,             
               or refund of any tax.                                                  

          Because petitioners argue that their expenditure of legal fees              
          was for the "protection of income"11 our focus will be on the               
          first two subsections of section 212.                                       
               Respondent argues that petitioners' legal expenditures were            
          neither for the production or collection of income nor for the              
          management of property held for the production of income, but               
          were instead to establish a right to or to perfect title to                 
          assets passing from a decedent.  It is petitioners' burden, of              
          course, to prove that all of the requirements of section 212 have           
          been met before their deductions will be allowed.  Rule 142(a);             
          Welch v. Helvering, 290 U.S. 111 (1933).                                    
               A taxpayer may not, under section 212, deduct legal fees               
          that are personal expenses.  Section 262(a).  Legal fees incurred           
          in protecting or asserting one's right to property of a decedent            
          as heir or legatee are not deductible.  Section 1.212-1(k),                 
          Income Tax Regs.  Also well established is the principle that               
          amounts paid to defend or perfect title to property are                     
          nondeductible capital expenditures.  Woodward v. Commissioner,              
          397 U.S. 572 (1970); Kramer v. Commissioner, 46 B.T.A. 951, 958             
          (1942).  Furthermore, amounts allocable to the production or                


          11The return for 1990 indicates that legal fees were paid to                
          "Protect investment".  Petitioners, on their returns for 1991 and           
          1992, deducted legal fees expended "to protect estate assets".              




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