John C. and Joan F. Stukes - Page 18




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         1221(a).  The regulations under section 1221 provide that                    
         “Property held for the production of income, but not used in a               
         trade or business of the taxpayer, is not excluded from the term             
         ‘capital assets’”.  Sec. 1.1221-1(b), Income Tax Regs.                       
              The Lakeshore property was a capital asset in petitioners’              
         hands, and petitioners properly reported the gain on the sale of             
         the Lakeshore property as capital gain in 2001.  Petitioners’                
         expenditures for the legal fees and expenses arose in connection             
         with the disposition of the Lakeshore property, rather than with             
         its conservation or maintenance, and are therefore capital                   
         expenditures.                                                                
              Respondent contends that the legal costs borne by                       
         petitioners did not relate to the sale of the Lakeshore property             
         but rather, at least in part, to petitioners’ counterclaim                   
         against the realtor for damages with respect to petitioners’                 
         personal property.  Consequently, according to respondent, the               
         legal costs are personal items which under section 262 are not               
         deductible.                                                                  
              The proper characterization of legal fees and expenses is               
         governed by the “origin of the claim” test. Woodward v.                      
         Commissioner, supra at 577-578.  The object of the “origin of the            
         claim” test is to find the transaction or activity from which the            
         taxable event proximately resulted.  United States v. Gilmore,               
         372 U.S. 39, 47 (1963).  The origin is determined by analyzing               







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