Dennis W. Stark - Page 24



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          Accordingly, we have difficulty seeing how the expenses of                  
          defending against William’s effort to reclaim the Lakeview stock            
          were personal to petitioner rather than an expense of Lakeview.             
               Such is not the case with the Fence Property, however.                 
          Although neither party has addressed the issue, we do not believe           
          that Lakeview is entitled to deduct any portion of the legal fees           
          allocable to the defense of William's effort to reclaim his                 
          interest in the Fence Property.  Pursuant to the Redemption                 
          Agreement, petitioner personally purchased William's interest in            
          the Fence Property; it was thus not a corporate asset and                   
          Lakeview's expenditures in defense of petitioner's title to it              
          were, strictly speaking, a constructive dividend.8  Petitioner              
          has not provided, and we are unable to discern, any basis for               
          allocating a portion of the legal fees to the Fence Property                
          defense.  In any event, the failure to allocate is of little                
          consequence because, as discussed more fully infra, the origin of           
          the claim related to these legal expenses was the process of                
          acquisition of a capital asset, in this instance an interest in             
          the Fence Property.                                                         
               c. Capital versus Ordinary                                             
               To the extent that the fees are not personal to petitioner             


               8 Because we conclude, with respect to the claim that the              
          legal expenses were personal, that such expenses either were not            
          personal or were personal because expended in defense of an asset           
          held not by Lakeview but in petitioner's name, we find it                   
          unnecessary to address petitioner's argument based on Kopp’s Co.            
          v. Commissioner, 636 F.2d 59 (4th Cir. 1980), that the legal                
          expenses were not personal because Lakeview's assets were                   
          directly threatened by the litigation.                                      



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