- 20 - Petitioner paid $300,000 to his lawyers upon the settlement of claims against PepsiCo and increased the basis of his PMI stock. Again, respondent, in her notice of deficiency, allowed petitioner these fees as a miscellaneous itemized deduction. For the reasons set out below, we hold that $219,000 of these fees is a proper addition to the basis of petitioner's stock, $54,000 of the fees is deductible as a miscellaneous itemized deduction, and $27,000 of the fees is nondeductible. Section 265 precludes a deduction for legal expenses attributable to a class of income that is exempt from taxation. Section 1.265-1(c), Income Tax Regs., provides as follows: Expenses and amounts otherwise allowable which are directly allocable to any class or classes of exempt income shall be allocated thereto; and expenses and amounts directly allocable to any class or classes of nonexempt income shall be allocated thereto. If an expense or amount otherwise allowable is indirectly allocable to both a class of nonexempt income and a class of exempt income, a reasonable proportion thereof determined in the light of all the facts and circum- stances in each case shall be allocated to each. Ordinarily, we allocate the legal expenses in the same proportion as the settlement payment. See Stocks v. Commis- sioner, supra at 18; Metzger v. Commissioner, 88 T.C. 834, 860 (1987), affd. 845 F.2d 1013 (3d Cir. 1988); Church v. Commis- sioner, supra at 1110-1111. But see Eisler v. Commissioner, supra at 642. Based on the evidence, a proportionate allocation is appropriate in this case. We have held that 73 percent of the settlement payment was paid for petitioner's stock, 18 percentPage: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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