Stephen A. Lenn and Ksenia Lenn - Page 1

                                 T.C. Memo. 1998-85                                   

                              UNITED STATES TAX COURT                                 

                   STEPHEN A. LENN AND KSENIA LENN, Petitioners v.                    
                    COMMISSIONER OF INTERNAL REVENUE, Respondent                      

               Docket No. 3981-96.              Filed February 26, 1998.              

                    P has a son, S, who is disabled within the meaning                
               of the Individuals with Disabilities Education Act,                    
               Pub. L. 91-230, sec. 601, 84 Stat. 175 (1970), as                      
               amended, and is entitled to special educational                        
               benefits from the public school system.  P                             
               unsuccessfully sued the public school district to                      
               obtain reimbursement for the tuition of a residential                  
               private school for S.  S attended the private school,                  
               and P has been allowed to deduct the tuition costs as                  
               medical expenses under sec. 213, I.R.C.  P claimed a                   
               deduction for the legal expenses incurred in the                       
               lawsuit against the public school as medical expenses                  
               under sec. 213, I.R.C.  R disallowed the deduction                     
               because the lawsuit was not necessary for S to attend                  
               the private school.  P contends that the reasoning of                  
               Gerstacker v. Commissioner, 414 F.2d 448 (6th Cir.                     
               1969), revg. and remanding 49 T.C. 522 (1968), which                   
               permitted the taxpayer to deduct the legal expenses                    

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