Charles H. Butler and Judith K. Butler - Page 24

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            predominant purpose in defending and settling the suit.  Woodward                            
            v. Commissioner, supra at 577-578.  In Woodward, the Supreme                                 
            Court rejected the primary purpose test, explaining that "A test                             
            based upon the taxpayer's 'purpose' in undertaking or defending *                            
            * * litigation would encourage resort to formalisms and                                      
            artificial distinctions."  Id. at 577.  The test for determining                             
            deductibility of legal fees under section 162 is ordinarily an                               
            objective one, looking to the "origin" or "character" of the                                 
            claim rather than the subjective "purpose" of the taxpayer in                                
            pursuing it.  Woodward v. Commissioner, supra at 577-578; United                             
            States v. Gilmore, 372 U.S. 39, 49 (1963).  The origin of the                                
            claim is ascertained by analyzing the facts of the situation at                              
            hand.  United States v. Gilmore, supra at 47-48.  We therefore                               
            consider the issues involved, the nature of the litigation, the                              
            defenses asserted, the background of the litigation, and all                                 
            facts pertinent to the controversy.  Id.                                                     
                  Petitioners incurred the legal expenses in connection with                             
            the Dell'Oca and the Knauss lawsuits.8  Petitioners argue that                               
            the legal fees expended with respect to the Dell'Oca lawsuit                                 
            served to protect the current income of the Pescadero property.                              

                  8 Respondent concedes that petitioners have verified the                               
            amounts claimed for legal expenses on Schedule F for 1991,                                   
            totaling $45,961.  It appears that petitioners substantiated                                 
            legal fees of $115,938.37 and $35,837.33, respectively, for the                              
            1992 and 1993 taxable years.  In light of our ultimate                                       
            disposition of this issue, we do not apportion expenses between                              
            the Dell'Oca and the Knauss lawsuits.                                                        




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