dissenting: I dissent from the prevailing opinion wherein it holds that legal expenses paid by the executors of an estate in the process of administration in defending an action for an additional Federal estate tax is not an allowable deduction in determining the net income of the estate for the. taxable year in which the payment was made.
The facts have been stated as a prelude to the prevailing opinion and need not be repeated. Section 219 of the Revenue Act of 1924, applicable to this proceeding, reads:
Seo. 219. (a) The tax imposed by Parts I and II of this title shall apply to the income of estates or of any kind of property held in trust, including—
* * * * * * *
(3) Income received by estates of deceased persons during the period of administration or settlement of the estate; and
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(b) Except as otherwise provided in subdivisions (g) and (h), the tax shall be computed upon the net income of the estate or trust, and shall be paid by the fiduciary. The net income of the estate or trust shall be computed in the same manner and on the same basis as provided in section 212, except that — ■ [exceptions not needed}.
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One of the deductions permitted a taxpayer in determining his net income under the provisions of section 212, above referred to, is prescribed in section 214 (a) (1) :
Seo. 214. (a) In computing net income there shall be allowed as deductions: (1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *.
In Muriel H. Wurts-Dundas, 17 B. T. A. 881, we held that attorney fees paid by the guardian of a minor’s estate, to assert her rights to one half of the net income of the trust estate of J. Bandas Lippincott during the life of Isabel A. Lippincott, were deductible expenses in computing the net income of the estate, because they constituted an ordinary and necessary expense in carrying on the business of guardian of the minor’s estate. Our decision was affirmed in Commissioner v. Wurts-Dundas, 54 Fed. (2d) 515. The court, in affirming our decision, said:
The sole question presented, is whether the attorneys’ fees paid by the guardian in 1923 were deductible from gross income as ordinary and necessary expenses paid during the taxable year in carrying on a trade or business.
That the guardian was acting in this litigation strictly in the discharge of its duties as such admits of no doubt. In so doing, it is beyond question that reasonable fees paid to attorneys to represent the guardian in an action to which it was a proper party were ordinary and, necessary expenses of the guardianship. Cf. Kornhauser v. United States, 276 U. S. 145, 152. If they were also expenses of a trade or business they were deductible, otherwise not. Such expenses are contrasted in the statute with personal, Jiving, or *16family expenses which are expressly made nondednctible by see. 215. That they were neither living nor family expenses is plain enough. Nor could they have been personal expenses since the guardian was acting only in a representative capacity to establish its rights as guardian. There is no difference in the nature of expenses incurred and paid for attorneys’ fees in securing additional income for the guardianship estate from expenses for the salaries of any employees to care for the income thus made available. When the guardian incurred and paid the expenses involved in this action, it was, to be sure, acting for the benefit of its ward but it was also acting in the performance of the duties required of it by law and to enable it to perform those duties in the furtherance of its business in doing its work as guardian.
Cf. Florence Grandin, 16 B. T. A. 515; Chicago Title & Trust Co., 18 B. T. A. 395.
I can see no distinction in substance between the claimed deduction which we have before us in the instant case and that which we had before us in Muriel H. Wurtz-Dundas, supra. The prevailing opinion attempts to draw such a distinction by citing John A. Loetscher et al., Executors, 14 B. T. A. 228, wherein we held that certain administration expenses, including the expenses incurred by attorneys in connection with the proceedings then pending before the Board, should be allowed as a deduction as a part of the administration expenses in determining the amount of decedent’s net estate subject to tax.
It should be pointed out that in the Loetscher case we had before us the determination of a deficiency in an estate tax. We held that petitioners had shown themselves entitled to take as a deduction in determining the net estate, $500 representing the amount disbursed in contesting the deficiency in estate tax then pending before the Board.
It seems to me that the situation we have before us in the instant case is somewhat different from what we had before us in the Loetscher case. In the instant case respondent has determined a deficiency in income tax against the executors of the estate of Frederick Ayer, not a deficiency in an estate tax. The taxable year before us is 1925 — seven years after the death of decedent, which took place in 1918. Returns of the executors for estate-tax purposes must be filed within one year after decedent’s death. See Regulations 68, relating to estate tax under Revenue Act of 1924. I fail to see how executors are going to get credit in determining estate tax due by decedent for attorney fees incurred and paid seven years after the death of the decedent.
Here we have before us an estate which in' 1925 is still in the course of administration and which in that year had taxable income and made a return of such income for taxation and took as a deduction attorney fees of $10,000 paid in that year in the course of carrying on the business of the estate.
*17I think it is deductible under the section of the statute which 1 have already cited and under the authority of the cases which I have cited.