Later courts went against this
Disagreed with by Jane K. Nickell, Now Jane K. Johnson by Marriage, and Joan D. Kincaid v. Commissioner of Internal Revenue, 831 F.2d 1265 (1987)
We therefore disagree with the construction apparently placed upon “recovering property” by Loyd v. United States, 153 F.Supp. 416, 139 Ct.Cl. 626 (1957) and Cruttenden v. Commissioner, 70 T.C. 191 (1978), aff'd on other grounds, 644 F.2d 1368 (9th Cir. 1981).
Distinguished
Distinguished by Estate of Allen v. Commissioner, 44 T.C.M. 9 (1982)
Petitioner cites Cruttenden v. Commissioner,644 F.2d 1368 (9th Cir. 1981), affg. 70 T.C. 191 (1978), but that case is distinguishable.
The opinion
Sterrett, J., concurring:
Except for section 212(3), section 212 is substantially unchanged from its predecessor, section 23(a)(2), I.R.C. 1939. Prior to the enactment of section 23(a)(2), section 23 allowed deductions only for expenses incurred “in carrying on any trade or business,” i.e., the deductions presently authorized by section 162(a), I.R.C. 1954, or then section 23(a)(1), I.R.C. 1939. If a profit-seeking activity did not constitute the carrying on of a trade or business, expenses incurred in connection therewith were not tax deductible. In enacting section 23(a)(2), Congress sought to remedy this inequity. Section 23(a)(2) “ ‘is comparable and in pari materia with section 23(a)(1)’ providing for a class of deductions ‘coextensive with the business deductions allowed by section 23(a)(1), except for’ the requirement that the income-producing activity qualify as a trade or business.” United States v. Gilmore, 372 U.S. 39,45 (1963), citing Trust of Bingham v. Commissioner, 325 U.S. 365, 373 (1945). Therefore application of the above statutory intent to expenses incurred for the recovery of property, with title not in issue, used by a taxpayer in his trade or business should have the same tax consequences as that of a taxpayer recovering property held for the production of income. For example, if an automobile leasing company rented an automobile and later incurred legal expenses in recovering the car, clearly, such expenses are deductible. Therein, title was not in issue. Similarly, as in the instant case, legal expenses incurred in the recovery of property held for the production of income, title not in issue, should be deductible.
Moreover petitioner’s legal expenditures paid for the recovery of securities lent to Command were for the purpose of conserving and maintaining her income-producing property. They were not for the purpose of improving or changing, in any way, her title to such property; they did not add to or increase the value of her property or her wealth and, thus, cannot be considered capital in nature. In my opinion, as title was never in issue and the property was income producing, the legal expenses herein must be considered conservatory in nature and deductible under section 212(2).
Raum, /., agrees with this concurring opinion.