OPINION.
Leech, Judge:The issue is whether the disallowed expenses petitioners paid in 1940 allocable to the recovery of the overpayment of income taxes for 1932 are deductible in computing their income taxes for 1940 under section 23 (a) (2) of the Internal Revenue Code.1
Respondent denies deductibility only on the grounds, apparently,, that (1) the suit, in which the expenses were incurred and paid, was not brought to produce income, but to recover taxes, and (2) the property (stock) was known to be worthless, at least when the suit was brought; was thus not then held by petitioners for production of income; and, accordingly, the expenses of the suit were therefore not those of “management, conservation, or maintenance of property held for the production of income.”
Assuming the validity of the first ground, the question still remains as to that of the second. Trust u/w of Mary Lily (Flagler) Bingham v. Commissioner, 325 U. S. 365.
In the cited case a trust had paid legal fees in the taxable year, incurred in connection with legal problems arising after the term of the trust expired and while the distribution of the trust fund was pending. In computing its income tax for that year the trust had deducted the amount of these fees under section 23 (a) (2) of the code — the same statutory provision involved here. The respondent disallowed the deduction.
In finally approving the deduction the Supreme Court said, inter alia:
* * * But the duties of the trustees were not only to hold the property for the production of income and to collect the income, but also, in administering the trust, to distribute the income and the principal so held from time to-time, and the remainder of the principal at the expiration of the trust. Performance of each of these duties is an integral part of carrying out the trust -enterprise. Accordingly, as the Tax Court held, the costs of distribution here were quite as much expenses of a function of “management” of the trust property as were expenses incurred in producing the trust income; and if “ordinary and necessary,” they were deductible.
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What we have said applies with equal force to the expenses of contesting the tax deficiency. Section 23 (a) (2) does not restrict deductions to those litigation expenses which alone produce income. On the contrary, by its terms and in analogy with the rule under §23 (a) (1), the business expense section, the trust, a taxable entity like a business, may deduct litigation expenses when they are directly connected with, or proximately result from the enterprise — the management of property held for production of income. Kornhauser v. United States, supra, 162-153; Commissioner v. Heininger, supra, 470-471. The Tax Court could find as a matter of fact, as it did, that the expenses of contesting the income taxes were a proximate result of the holding of the property for income. And we cannot say, as a matter of law, that such expenses are any less deductible than expenses of suits to recover income. Cf. Commissioner v. Heininger, supra.
The petitioners are in the same position as the trust in that case. We think that, for present purposes, “management” of their stock by petitioners may with sufficiently comparable force be said to include the effort to deduct their bases for that worthless stock in computing their income taxes for 1932. The economic benefit resulting from that deduction was the natural — in fact the only — means reasonably left to them of obtaining any such benefit. Likewise, in our opinion the litigation to recover a refund of the taxes paid following the dis-allowance of that deduction was a natural consequence of and just as proximately connected with that act of “management” as the contest of the deficiency in the Bingham case.
That petitioners knew the stock had become worthless before the nuit was brought or the fees paid does not change the fact that it was bought and, when the act of “management” occurred which proxi-inately resulted in the disputed expenses, was “held for the production of income.” That, we think, is sufficient to justify the contested deduction.
Reviewed by the Court.
Decision will be entered under Rule 50.
Smith, </., concurs only in the result.SEC. 23. DEDUCTIONS FROM GROSS INCOME.
In computing net income there shall be allowed as deductions:
(a) Expenses.—
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(2) Non-tbadb ob non-business expenses. — In the case of an individual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of property .held for the production of Income.