M. Bennett Marcus and Maria F. Marcus - Page 5

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          against him by former patients.  In 1983, a lawsuit was filed by            
          Dianna Dall'Occhio against Mr. Marcus (the Dall'Occhio lawsuit).            
          Mr. Marcus did not carry malpractice insurance at the time of the           
          Dall'Occhio lawsuit.  An attorney, John DiCaro (DiCaro), handled            
          the settlement of that lawsuit.  Petitioners deducted $10,112 in            
          legal expenses on their 1990 individual Federal income tax return           
          for alleged payments to five attorneys.  Petitioners                        
          substantiated all of the payments to four of the five attorneys,            
          in the amount of $6,368, by providing copies of canceled checks             
          during the audit of petitioners' 1990 Federal income tax return.            
          Petitioners did not provide respondent with copies of canceled              
          checks made payable to DiCaro.  Respondent disallowed the                   
          remaining amount which petitioners allegedly paid to DiCaro.                
                             ULTIMATE FINDINGS OF FACT                               
               As a substitute for a bequest of property and in settlement            
          of all claims which she had against her stepfather's estate, the            
          sisters agreed to pay Mrs. Marcus one-third of the net proceeds             
          from the estate when and as it was liquidated.                              
               Petitioners did not provide any substantiation for the                 
          alleged payments to DiCaro.                                                 
                                       OPINION                                        
               This case deals with two separate and distinct issues, a               
          capital gain versus tax-free inheritance issue and a                        
          substantiation of attorney's fees issue.  Should we find for                





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