- 18 - 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 anythingPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011