- 17 - 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 analyzingPage: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: November 10, 2007