Charles H. Butler and Judith K. Butler - Page 23

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                                           Legal Expenses                                                
                  During the years under consideration, petitioners paid legal                           
            fees in connection with two lawsuits.  Petitioner husband argues                             
            that the litigation expenses incurred in connection with the                                 
            Dell'Oca and the Knauss lawsuits, respectively, were deductible                              
            business expenses.  In that regard, petitioners state that the                               
            lawsuits were incurred to protect the income arising from the                                
            farm activity.  Conversely, respondent maintains that the origin                             
            of the claim asserted in both lawsuits was in the nature of                                  
            defending or perfecting title to the Pescadero property and,                                 
            hence, was capital in nature.  Specifically, respondent contends                             
            that, under section 263, the legal expenses were not deductible                              
            as ordinary and necessary expenses within the meaning of section                             
            162 or 212 because these expenses were capital in nature.                                    
                  Section 263 provides that no deduction is allowed for                                  
            capital expenditures.  Legal expenses incurred to defend or                                  
            protect title to property or to acquire or dispose of a capital                              
            asset are capital expenditures and are not deductible.  Woodward                             
            v. Commissioner, 397 U.S. 572, 575-576 (1970); Mosby v.                                      
            Commissioner, 86 T.C. 190, 196 (1986); Kasey v. Commissioner, 54                             
            T.C. 1642, 1648-1649 (1970), affd. 457 F.2d 369 (9th Cir. 1972);                             
            Midco Oil Corp. v. Commissioner, 20 T.C. 587, 591 (1953).                                    
                  The appropriate test for determining whether petitioners may                           
            deduct legal expenses is the origin of the claim, rather than the                            





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