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Boagni v. Commissioner, supra [59 T.C. 708 (1973)]
(recognizing that litigation costs can be characterized as
both deductible and nondeductible when the litigation is
rooted in situations giving rise to both types of
expenditures). * * * [Guill v. Commissioner, 112 T.C. 325,
331 (1999).]
Respondent supports the apportionment contention by citing
Pozzo di Borgo v. Commissioner, 23 T.C. 76 (1954); Looby v.
Commissioner, T.C. Memo. 1996-207; Page v. Commissioner, T.C.
Memo. 1970-112. The common thread of distinction between those
cases on the one hand and the instant case on the other, is that
in each of the cases cited by respondent the Court concluded or
assumed arguendo that at least some part of the disputed expenses
had been incurred for a nondeductible purpose, while in the
instant case we conclude-–and we have found–-that the disputed
expenses were incurred in entirety for section 212(1) or (2)
purposes. Also, in Pozzo di Borgo, the taxpayer merely lost in
her effort to claim at trial a deduction in excess of what she
had claimed on her tax return. The taxpayer’s tax return claim
of a deduction for 63.4864 percent of the commission payments she
made apparently was not challenged, and so the taxpayer “face[d]
the burden of establishing that commissions in excess of the
amount deducted on her income tax return are not within the
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