concurring: While I agree with Judge Sterrett’s concurring opinion, I wish to stress the importance in this case to me of the fact that respondent’s concession (which is in accordance with his Rev. Rul. 72-545,1972-2 C.B. 179, that is in my view an incorrect interpretation of section 212(3)) lulled petitioners into offering proof only as to the portion of the attorney’s fees allocable to “tax advice.” Had respondent not conceded the deductibility of attorney’s fees paid for “tax advice” in estate planning, petitioners might well have shown that some of the advice they received was such that a portion of the legal fees would be deductible under section 212(2). See Nancy Reynolds Bagley, 8 T.C. 130 (1947). Fairness would dictate that we reopen this case to permit petitioners to prove what portion, if any, of the attorney’s fees they paid would be deductible under section 212 (2) if we refused to accept respondent’s concession which narrowed the issue for trial to one of fact. Except for the limitation of the issue tried because of respondent’s concession, I would agree with Judge Quealy’s dissent in this case. As pointed out by Judge Davis in hi's dissent in Carpenter v. United States, 338 F. 2d 366, 371-372 (Ct. Cl. 1964), under the view adopted by respondent in Rev. Rul. 72-545, supra, and his concession in this case, “individual taxpayers will be able automatically to deduct counsel fees paid for * * * personal expenses, [fn. omitted] barred from deduction by Section 262 of the 1954 Code * * *.” Such a result appears to me, as further pointed out in Judge Davis’ dissent, to be contrary to the statement of the Court in United States v. Gilmore, 372 U.S. 39 (1963), to the effect that expenses which have their origin in “family” or “personal” matters are not deductible because of the provisions of section 262. The cost of planning by a taxpayer for the disposition of property after his death is to me clearly for a personal undertaking as distinguished from the cost of planning for the present best use of property for its conservation and income production, which cost is deductible under section 212(2), not section 212(3).
Goufe, J. agrees with this concurring opinion.