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relief asserted in Garland's lawsuit were not separate and
distinct causes of action but, instead, were an amalgam of
theories for invalidating the Trust (e.g., undue influence and
fraud) and remedies to enhance his potential recovery (e.g.,
constructive trust and punitive damages). This is confirmed by
the testimony of petitioner's attorney who testified at trial
that "the first claim, the second claim, and the fourth claim
basically merge. They're the same issues factually. They're
just different theories, pled in the alternative * * * involving
an element of fraud".
Petitioner's attorney also testified that 75 percent of his
fees were allocated to the first, second, and fourth claims and
that 25 percent was allocated to the third claim for relief which
alleged tortious interference with an expectancy and was
dismissed prior to trial. Petitioner's attorney confirmed that
the allocation was not based on precise recordkeeping but rather
was an estimate. The allocation is not controlling here for
several reasons. The first is that the allocation was made among
claims for relief which suffer from the same infirmity--each one
is grounded in an attempt to invalidate the Trust. Regardless of
whether an allocation is made, none of the costs so allocated are
deductible because they do not satisfy the standard for
deductibility under section 212. The second reason is that
petitioner has failed to prove that the allocation is anything
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