Jeffrey and Karen Winter - Page 13




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               Petitioners’ reliance on Freeland v. Commissioner, T.C.                
          Memo. 1986-10, is misplaced.  In that case, the taxpayers                   
          incurred litigation expenses in a wrongful foreclosure action               
          resulting from the taxpayers’ declaration of default on a                   
          promissory note, their exercise of an option to accelerate                  
          installments, and their initiation of foreclosure proceedings.              
          Neither party to the litigation was seeking to adjust the                   
          purchase price of the sales agreement; rather, the purpose of the           
          foreclosure action was to move title to the property from one               
          party to another.  We found that the kind of transaction out of             
          which the litigation arose was the foreclosure action, not the              
          original acquisition of the property.  However, because the                 
          taxpayers ultimately were the successful bidders at the                     
          foreclosure sale, we held that all of their litigation expenses             
          were attributable to the reacquisition of title and were not                
          currently deductible.  The instant case is distinguishable                  
          because petitioners incurred legal fees maintaining a lawsuit to            
          recover damages from Mr. Meglin for misrepresentations which                
          caused petitioners to pay an inflated price for the hotel.                  



               5(...continued)                                                        
          they sought and recovered damages to compensate them for the                
          difference between the purchase price of the hotel and the fair             
          market value of the hotel at the time of sale.  Petitioners have            
          made no attempt in the instant case to allocate the $271,473.95             
          reduction in the amount owed under the promissory note among the            
          difference between purchase price and actual value of the hotel,            
          lost profits, and renovation costs.                                         





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