-55-
collection of assets, payment of debts, and distribution of
property to the persons entitled to it. * * *. Expenditures
not essential to the proper settlement of the estate, but
incurred for the individual benefit of the heirs, legatees,
or devisees, may not be taken as deductions. Administration
expenses include * * * miscellaneous expenses. * * *
Thus, for the expense to be deductible, the regulations
require that in addition to the expense's being allowable under
the state law under which the estate is being administered, it
must also be "necessarily incurred" in the administration of the
decedent's estate.
The Federal Courts of Appeals are split over whether this
additional requirement is consistent with the statutory directive
to follow State law. See Estate of Papson v. Commissioner, 73
T.C. 290, 299 n.9 (1979), and the authorities cited therein. In
Marcus v. DeWitt, 704 F.2d 1227, 1229-1230 (11th Cir. 1983), the
Court of Appeals for the Eleventh Circuit, the court to which an
appeal in this case would lie, citing Pitner v. United States,
388 F.2d 651, 659 (5th Cir. 1967),21 stated that the law is well
established for the Eleventh Circuit that the State probate court
determination is not conclusive of whether an administration
expense is allowable for purposes of the Federal estate tax
deduction. Accordingly, in resolving this issue, we shall
21 See supra note 11.
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