Ruby Jean Stevens - Page 18




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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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