Stephen A. Lenn and Ksenia Lenn - Page 9

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          expense, and section 213 is an exception to the general rule of             
          section 262 that personal, living, and family expenses are not              
          deductible.  Section 213(d)(1) defines medical care as amounts              
               (A) for the diagnosis, cure, mitigation, treatment,                    
               or prevention of disease, or for the purpose of                        
               affecting any structure or function of the body,                       
               (B) for transportation primarily for and essential                     
               to medical care referred to in subparagraph (A), or                    
               (C) for insurance * * * covering medical care                          
               referred to in subparagraphs (A) and (B).                              
          The regulations provide that medical expense deductions "will be            
          confined strictly to expenses incurred primarily for the                    
          prevention or alleviation of a physical or mental defect or                 
          illness."  Sec. 1.213-1(e)(1)(ii), Income Tax Regs.                         
               To qualify as a medical expense deduction, the expense must            
          be for services that are directly or proximately related to the             
          diagnosis, cure, mitigation, treatment, or prevention of the                
          disease or illness.  Jacobs v. Commissioner, 62 T.C. 813, 818               
          (1974).  An expense that provides an "incidental benefit", Havey            
          v. Commissioner, 12 T.C. 409, 413 (1949), or that is merely in              
          some way connected to medical care, Gerstacker v. Commissioner,             
          414 F.2d 448 (6th Cir. 1969), revg. and remanding 49 T.C. 522               
          (1968), is not deductible.  Accordingly, petitioner would be                
          entitled to deduct the legal expenses in issue under section 213            
          if there is a direct or proximate relationship between the legal            
          fees and the treatment of a medical condition.                              

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