Carpenter v. United States, 192-62.

• Decision Date: 13 November 1964
• Docket Number: No. 192-62.,192-62.
• Citation: 338 F.2d 366
• Parties: William K. CARPENTER and Leigh P. Carpenter v. The UNITED STATES.
• Court: U.S. Claims Court

338 F.2d 366 (1964)

William K. CARPENTER and Leigh P. Carpenter v. The UNITED STATES.

No. 192-62.

United States Court of Claims.

November 13, 1964.

Gordon W. Gerber, Philadelphia, Pa., for plaintiffs, Kenneth W. Gemmill, Philadelphia, Pa., Dechert, Price & Rhoads, Philadelphia, Pa., of counsel.

Joseph P. Spellman, Washington, D. C., with whom was Asst. Atty. Gen. Louis F. Oberdorfer, for defendant, C. Moxley Featherston, Lyle M. Turner and Philip R. Miller, Washington, D. C., on the briefs.

Before COWEN, Chief Judge, DURFEE, DAVIS and COLLINS, Judges, and WHITAKER, Senior Judge.

DURFEE, Judge.^*

This is a suit for income taxes. In 1957 plaintiff¹ incurred and paid certain attorney's fees arising out of an uncontested divorce and separation from his former wife. Although defendant disputes the validity of a good faith allocation made by plaintiff's attorney, the evidence establishes that at least seventy percent of the total bill of $10,031.21 paid by plaintiff to his attorney represented the fee properly allocable to services and advice as to the tax consequences flowing from the divorce and separation. Primarily, plaintiff's attorney directed his professional efforts in plaintiff's behalf to making sure, so far as possible, that the very substantial support payments agreed to be made by plaintiff to his former wife would constitute taxable alimony to the latter and hence be deductible by plaintiff. The other thirty percent of the fee was for relatively minor non-tax services rendered in connection with the divorce and separation proceedings.

Plaintiff contends that the part of his attorney's fees which pertained solely to services and advice on tax matters is deductible from his gross income for 1957 under Section 212(3) of the Internal Revenue Code of 1954, 26 U.S.C. § 212(3), 68A Stat. 69, as interpreted in Section 1.212-1 of the Treasury Regulations.

Section 212 of the Internal Revenue Code of 1954 provided:

"§ 212. Expenses for production of income

"In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year —

"(1) for the production or collection of income;

"(2) for the management, conservation, or maintenance of property held for the production of income; or

"(3) in connection with the determination, collection, or refund of any tax."

Section 1.212-1 of the Treasury Regulations on Income Tax (1954 Code) provides in pertinent part:

"Sec. 1.212-1 Nontrade or non-business expenses.

* * * * * *

"(l) Expenses paid or incurred by an individual in connection with the determination, collection, or refund of any tax, whether the taxing authority be Federal, State, or municipal, and whether the tax be income, estate, gift, property, or any other tax, are deductible. Thus, expenses paid or incurred by a taxpayer for tax counsel or expenses paid or incurred in connection with the preparation of his tax returns or in connection with any proceedings involved in determining the extent of tax liability or in contesting his tax liability are deductible."

The language of the foregoing regulation, "Thus, expenses paid or incurred by a taxpayer for tax counsel * * * are deductible," is sufficiently clear by itself to allow the deduction sought here. Moreover, the question involved is not even one of first impression in the Court of Claims. In Davis v. United States, 287 F.2d 168, 171, 152 Ct.Cl. 805, 811 (1961), this court held, on facts substantially identical to those here, that "* * fees paid by plaintiff for consultation and advice in tax matters arising in connection with the settlement agreement are properly deductible from gross income" under Sec. 212(3) and the above regulation. See also Frisch, Divorce and Separation Tax Techniques, 20 N.Y.U. Inst. on Fed. Tax. 35, 49 (1962).

On certiorari, Davis was affirmed in part and reversed in part by the Supreme Court of the United States. United States v. Davis, 370 U.S. 65, 82 S.Ct. 1190, 8 L.Ed.2d 335 (1962). However, the Government did not seek review on the question here involved, and the Supreme Court specifically refrained from intimating any opinion on the question, except to say, "As to the deduction of the wife's fees, we read the statute, if applicable to this type of tax expense, to include only the expenses of the taxpayer himself and not those of his wife." Emphasis supplied. See United States v. Davis, supra, at p. 74, 82 S.Ct. at p. 1195.

Thereafter, the Supreme Court decided in United States v. Gilmore, 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.2d 570 (1963) that legal expenses generated by a separation or divorce were not deductible under Section 23(a) (2) of the 1939 Code (now Section 212(2) of the 1954 Code) as "* * * ordinary and necessary expenses * * * incurred during the taxable year * * * for the * * * conservation * * * of property held for the production of income." The Court considered that section to apply only to expenses arising out of a taxpayer's profit-seeking activities. Thus, it is clear that the legal fees in question are not deductible under Section 212(2), and plaintiff does not now so contend.

However, in Gilmore, the Supreme Court specifically distinguished Section 212(2) from Section 212(3). In footnote 16 at page 48 of 372 U.S., at page 629 of 83 S.Ct., the Court stated:

"Expenses of contesting tax liabilities are now deductible under § 212(3) of the 1954 Code. This provision merely represents a policy judgment as to a particular class of expenditures otherwise non-deductible, like extraordinary medical expenses, and does not cast any doubt on the basic tax structure set up by Congress."

Thus, so far as the question at issue here is concerned, there appears to be nothing in the decisions of the Supreme Court in Davis and Gilmore, which would contravene the holding of this court in Davis v. United States, supra.

Defendant urges that the decision of this court, in Davis, supra, should now be reversed because there is nothing in the statute or the regulations to indicate provision for tax counsel except in proceedings involving tax controversies. In support of this position, the Government has cited the reports of the House and Senate Committees.² The Committee reports make clear that Section 212(3) was primarily designed to change the rule in Lykes v. United States, 343 U.S. 118, 72 S.Ct. 585, 96 L.Ed. 791 (1952), which held that legal fees paid in connection with litigation of an issue as to gift tax liability were not deductible because a gift tax (rather than an income tax) was being contested. Subsection (3) of the statute allows deduction for legal expenses "in connection with the determination, collection, or refund of any tax." This language is clearly not limited in meaning to any contested tax controversy, as construed by defendant.

The primary problem in Davis, supra, was the inclusion in income for the specific tax year involved, of the gain from the use of appreciated property in a lump sum property divorce settlement. The instant case is concerned not only with plaintiff's tax liability for the year in which the divorce settlement was concluded, but also as to the annual deductibility from income of alimony payments in future years under Section 215 of the Internal Revenue Code for 1954. For the reasons hereinafter stated, we reaffirm the rule in Davis that "fees paid by plaintiff for consultation and advice in tax matters arising in connection with the settlement agreement are properly deductible from gross income," and hold that this rule controls in the instant case.

In interpreting this subsection of the statute, Treasury Regulations § 1.212-1 (l) does not restrict the deductibility of expenses for the employment of tax counsel to contest of a tax liability or preparation of tax returns for a single year. It provides, by way of illustration, four separate examples:

"expenses paid or incurred for the tax counsel or expenses paid or incurred in connection with the preparation of his tax return

or in connection with proceedings involved in determining the extent of his tax liability

or in contesting his tax liability." Emphasis supplied.

There is nothing in the Regulation to suggest that these four illustrative examples of legal expenses deductible under Section 212(3) are exclusive as to its application. Subsection 1(g) of the same section of the Regulation provides for the deduction of fees paid for services of, among other things, "investment counsel." Obviously, a taxpayer does not employ investment counsel after he has made his investments, and he should not be restricted to deduction of expenses for tax counsel solely to discover the tax consequences of what has already transpired or a tax liability already accrued. One of the purposes of a taxpayer in obtaining tax counsel is to avoid tax contests, not to create them, and this also serves the interest of the Government in collecting taxes.

The collection of Federal income taxes is accomplished in the first instance by a method of self assessment prescribed by Section 6012 of the Internal Revenue Code of 1954, and the regulations thereunder. This requires the taxpayer, in the preparation of his income tax return, not merely to submit tax information but to compute his own tax, and under Section 6151 to pay "such tax."

No exercise in semantics is required in order to conclude that by this process of self assessment, the Government in the first instance accepts the taxpayer's computation and payment of his own tax as a "determination" thereof. It may later challenge or contest the tax liability, but Section 212(3) refers to the "determination * * * of any tax," without restriction to a contested liability.

For advice in arriving at this determination, the taxpayer may consult the Internal Revenue Service, or he may under Treasury Regulations § 1.212-1(l) employ "tax counsel." One of the legitimate purposes of plaintiff in employing tax counsel was to minimize...