Robert Joseph Looby and M. Patricia Looby - Page 10

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          than fair market value.  Petitioner's claims were aimed at                  
          enlarging the amount of money to be ultimately distributed by the           
          estate.  These claims are analogous to those in Grabien v.                  
          Commissioner, 48 T.C. 750 (1967).  In that case a taxpayer, who             
          was a residuary legatee of 50 percent of his brother's estate,              
          sued the executrix, alleging excessive fee payments and asking              
          for an accounting.  We denied a deduction for the attorney's fees           
          paid for those actions because:                                             
               Petitioner's interest in the estate was essentially a                  
               money claim dependent in amount on the amount of cash                  
               in the estate after the conversion to cash of the                      
               estate's assets and after allowance of all expenses of                 
               administration.  A mere money claim of this sort is not                
               property held for the production of income and                         
               petitioner never held the property for the production                  
               of income or otherwise until after the determination of                
               the Probate Court with respect to the disputed                         
               extraordinary fees and distribution of the estate                      
               assets.  The expense here in issue is analogous to an                  
               expense of perfecting or protecting title to property                  
               and not deductible as an expense of managing,                          
               maintaining, or conserving property.  [Id. at 753;                     
               citations omitted.]                                                    

          Accordingly, we find the claims pursued by petitioner in the                
          State court to be in essence either capital or personal in                  
          nature.                                                                     
               We note that one of the allegations by petitioner in each of           
          her two legal actions concerns the failure of the executors, for            
          a period of time, to collect rent on the Chicago property and               
          their concession of back rent upon the sale of the property,                
          apparently to the lessee.  Petitioners urge the Court to find               





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