Ruby Jean Stevens - Page 15




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               administration expenses, including fiduciaries' fees                   
               and expenses of litigation, which are ordinary and                     
               necessary in connection with the performance of the                    
               duties of administration are deductible under section                  
               212 notwithstanding that the estate or trust is not                    
               engaged in a trade or business * * *  [Emphasis added.]                
          The phrase "duties of administration" is not defined in section             
          1.212-1(i), Income Tax Regs.  Petitioner would have us define it            
          in this case to include the defense of a lawsuit in which a                 
          trustee is sued, regardless of the nature of the claims asserted,           
          arguing that a trustee has a fiduciary duty to defend any lawsuit           
          which threatens the integrity and operation of the Trust.                   
          Petitioner relies on our decisions in Moore Trust v.                        
          Commissioner, 49 T.C. 430 (1968) and Estate of Barnhart v.                  
          Commissioner, T.C. Memo. 1959-42, to support her argument.6                 
               Again, we must reject petitioner's position.  An examination           
          of the cited cases reveals why.                                             
               In Moore Trust, a trustee sought judicial interpretation of            
          the trust instrument to determine whether the remainder interests           
          could be accelerated following the life tenant's renunciation of            
          her interest in the trust.  The litigation at issue did not                 
          involve any claim that the trust was invalid but was filed to               
          resolve an interpretive issue raised by the trust agreement                 
          impacting directly on the manner in which the trust would be                


               6We accept, arguendo, petitioner's contention that she owed            
          a fiduciary duty to defend the Trust against Garland's lawsuit.             
          See First Natl. Bank v. Stricklin, 347 P.2d 652 (Okla. 1959).               




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