Cheryl Denese Brewer - Page 11

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          1997-156; Berst v. Commissioner, T.C. Memo. 1997-137; Martinez v.           
          Commissioner, T.C. Memo. 1997-126; Fredrickson v. Commissioner, T.C.        
          Memo. 1997-125.                                                             
          Issue 2. Excludability of Legal Fees                                        
               The second issue is whether petitioner is entitled to exclude          
          from gross income amounts paid as legal fees.  Petitioner argues            
          that because her legal fees were paid to counsel from the settlement        
          proceeds and petitioner never received such fees, petitioner is             
          entitled to exclude the legal fees from her 1992 income.  Respondent        
          contends that petitioner may deduct attorney's fees of $40,620 as           
          a miscellaneous itemized deduction to the extent they exceed 2              
          percent of petitioner's adjusted gross income.                              
               Although State Farm issued a check jointly to petitioner and           
          her attorney, petitioner was responsible for her legal costs.  The          
          settlement agreement provided, inter alia, that the State Farm              
          payment included petitioner's attorney's fees and that it was               
          petitioner's responsibility to pay her attorney's fees.                     
               Thus, we agree with respondent that the attorney's fees are            
          includable in petitioner's gross income and deductible as a                 
          miscellaneous itemized deduction.  See Alexander v. Commissioner,           
          72 F.3d 938, 946 (1st Cir. 1995), affg. T.C. Memo. 1995-51.                 










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