*797 The petitioners' decedent was appointed coexecutrix of the will of her deceased brother and in closing the estate paid the residuary estate to herself pursuant to the provisions of the will. Thereafter, a suit was brought against her individually and as executrix by the officials of Pike County, Illinois, for personal property taxes owed by the deceased brother and by the estate. The suit was decided in the Supreme Court of the State of Illinois in favor of the petitioners' decedent. in defense of the suit the petitioners' decedent, in 1934, paid attorney fees in the amount of $32,898.34, which were claimed as a deduction from gross income in her income tax teturn for 1934 but were disallowed by the respondent in the determination of the deficiency. Held, that the attorney fees are not legal deductions from gross income.
*815 This proceeding involves a deficiency of $9,502.97 in the income tax of Ida B. Stone, deceased, for 1934. The only question in issue is whether attorney fees paid out by the decedent in 1934 in defending a claim brought*798 by the tax authorities of Pike County, Illinois, for property taxes alleged to be due from her deceased brother, under whose will the decedent was residuary legatee, are deductible as an ordinary and necessary business expense.
FINDINGS OF FACT.
Decedent's brother, Louis D. Hirsheimer, died a resident of Cook County, Illinois, on September 25, 1929, and the decedent and her *816 brother, Ben Hirsheimer, were appointed executors of his estate. Decedent was also the residuary legatee under the will of Louis D. Hirsheimer.
Ben Hirsheimer resigned as executor in October 1931 and thereafter the decedent administered the estate as sole executrix.
The estate of Louis D. Hirsheimer was valued for estate tax purposes at a net valuation of $2,434,019.45. The decedent filed her final accounting on the estate on February 16, 1932, and was discharged as executrix, subject to the payment of 1930 and 1931 personal property taxes in Cook County. These taxes were thereafter paid and decedent was finally discharged as executrix of March 18, 1932. As residuary legatee the decedent received the remaining assets of the estate, after payment of certain specific bequests of approximately*799 $445,000, of a net value of approximately $1,900,000.
The assets of the estate consisted principally of cash, stocks and bonds, real estate, including farm lands and city properties, and real estate mortgages.
On November 6, 1931, the decedent, as "surviving executrix" of the estate of Louis D. Hirsheimer, was served with a notice, addressed to "the acting executors and trustees in the estate of Louis D. Hirsheimer, deceased," of a tax assessment by the tax authorities of Pike County, Illinois, in respect of alleged "omitted" personal property of Louis D. Hirsheimer. The assessment related to the years 1905 to 1931, inclusive, and amounted with penalties to over $650,000.
In October 1932 proceedings for collection of such taxes were begun in the Chancery Court of Pike County against the decedent, and also Julia Hirsheimer as executrix of Ben Hirsheimer, deceased, and the Continental Illinois National Bank & Trust Co. of Chicago, as successor trustee under the will of Louis D. Hirsheimer.
A petition was filed in the Circuit Court of Pike County by the decedent and others to have the tax collection proceedings quashed, but the petition was dismissed by the court. An appeal*800 was then taken to the Supreme Court of the State of Illinois which, on December 22, 1933, rendered an opinion reversing the Circuit Court and holding that the assessment was invalid.
During 1934 the decedent paid attorney fees of $32,898.34 for services rendered by her attorney in resisting the tax assessment. In her income tax return for 1934 she deducted the attorney fees as an ordinary and necessary business expense, claiming erroneously an amount of $33,970.16.
The properties which the decedent as residuary legatee acquired from the estate of Louis D. Hirsheimer consisted of 50 or 60 different issues of stock, about 50 different issues of municipal bonds, about 25 different issues of public utilities securities, about 15 miscellaneous *817 notes and certificates of deposit, 50 or 60 real estate mortgages, about 75 different issues of real estate bonds, and 16 farms ranging in size from 40 to 500 acres, located principally in Pike County, Illinois. In addition to those properties the decedent at that time had a large estate of her own, consisting of $450,000 of United States Government securities and approximately $500,000 of stocks of 12 or 15 different issues.
*801 The decedent personally managed all of the properties, both those acquired from her brother's estate and those which she had previously owned, investing and reinvesting the funds, collecting dividends, interest and rents, and passing on all matters of importance arising in connection therewith.
During 1934 decedent sold or collected at maturity real estate mortgages and notes amounting to $10,790, municipal bonds amounting to $21,598.80, and certificates of deposit amounting to $1,850. During that year she purchased $27,000 of stocks, $65,700 of United States Government bonds, and $800 of real estate mortgage notes.
In June 1933 the decedent employed a secretary and bookkeeper, who devoted all of his time to her work. His compensation was $350 per month. She also employed a stenographer part time. In September 1933 decedent rented an office in the Field Building on LaSalle Street, Chicago, where she conducted her business transactions and kept her books and records. She paid an annual rental of $822 for the office.
The farms which decedent inherited from her brother were all rented out on a share basis. The tenant of one of the largest of the farms acted as decedent's*802 agent in the management of the others.
The decedent during the year 1934 was engaged in a trade or business consisting of the active management of her various properties.
OPINION.
SMITH. The question for our determination is whether the attorney fees which the decedent paid out in 1934 in defense of the tax claim asserted by the tax authorities of Pike County, Illinois, are deductible from her gross income as an ordinary and necessary business expense.
The taxing statute authorizes the deduction from gross income in computing net income of "all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business." Sec. 23(a), Revenue Act of 1934.
The respondent has disallowed the deduction of the attorney fees in question on the ground that they were paid in defense of an action against the decedent as a distributee of her brother's estate; that the cost of defending the tax claim "in no way depended upon whether or not you were operating a business, but involved a question *818 concerning your right to receive the assets of the estate" of the deceased brother. in his deficiency notice the respondent refers to article*803 24-2 of Regulations 86, which states that the cost of defending or protecting title constitutes a part of the cost of the property and is not a deductible expense.
In support of their contention that the amount paid for attorney fees is a legal deduction from gross income, the petitioners argue that the decedent was during the taxable year engaged in a trade or business and that that business consisted of the active management of the decedent's various properties. We have found as a fact that she was engaged in such trade or business. But we are of the opinion that this finding is immaterial to the issue presented.
The question here is whether the attorney fees paid by the petitioners' decedent in 1934 were paid "in carrying on any trade or business." The deduction can be allowed only if it falls fairly within the provisions of the statute. .
In his deficiency notice the respondent has stated that the reason for the disallowance of the deduction of the attorney fees is that their payment "in no way depended upon whether or not you were operating a business." We think that this fact is evident. The*804 tax authorities of Pike County, Illinois, claimed that for a long period of years the decedent's brother, from whom Ida B. Stone inherited a large amount of property, owed back personal property taxes and that his estate was liable therefor. The claim was made against petitioners' decedent because she as residuary legatee had received the assets of the estate of her brother. The claim would have been made against her regardless of whether she was carrying on a trade or business. She was, of course, under the necessity of protecting her property. We think it is a far stretch of the language of the statute to say that the attorney fees paid in 1934 by the petitioners' decedent in resisting the tax claim constituted "ordinary and necessary expenses * * * in carrying on any trade or business."
In , the facts were that the taxpayer inherited valuable ore lands with leases thereon. Afterwards a suit was brought against the taxpayer and other heirs by one Gamble, who claimed to be the owner of a onefourth interest in the testator's estate. This suit was successfully defended and in 1925 the taxpayer paid $19,089.82*805 as attorney fees incurred in the case. Deduction therefor was disallowed by the Commissioner, whose action was sustained by the Board. In affirming the Board's decision the court said:
It is clear that the transactions which caused appellant to pay the several attorneys' fees in question were not part of any trade or business carried on by her, but were separate transactions affecting only her personal interests *819 and estate. The ore lands in which appellant acquired an interest were under royalty leases when her interest accrued, and she had no part in operating the property. She simply received her share of the royalties as and when they became payable. Moreover, the attorneys' fees in question were not paid for services rendered in connection with the operation of the ore lands or other property of appellant, but in cases requiring only a defense of her title to such property. The cost of defending her title to property under such circumstances does not constitute a deductible expense under the statute. .
In *806 , the question presented was whether payments in settlement of a suit by the deceased partner's wife asserting claim to partnership assets and for attorney fees in connection therewith were deductible from gross income as expenses paid or incurred in carrying on a trade or business. The expenditures involved were made by the surviving partner in the compromise of the case, which did not relate to ordinary management or control of the business in which the taxpayer was then engaged, which was the buying and selling of milk, but related solely to the taxpayer's title to the assets of the business, the purpose for payment to the widow of the deceased partner being to secure to taxpayer the proprietary interest in the business. The attorney fees were held not deductible from gross income.
In , the question presented was whether moneys paid by a partnership in settlement of claims against one partner while a member of a previous partnership are deductible from gross income. The court pointed out that, while deductions from income for ordinary*807 and necessary expenses should be broadly construed to facilitate business generally, deductible business expenses must bear some reasonable relation to such business. To the same effect are ;; ; .
In support of their contentions that the attorney fees paid by the petitioners' decedent are deductible from gross income, the petitioners cite . The issue there was whether a law partner was entitled to deduct from gross income legal expenses paid by him in defending a suit brought against him by a prior partner. The court held that they were legal deductions from gross income because they were "directly connected with, or * * * proximately resulted from" the taxpayer's business. In the instant proceeding we can not find that the attorney fees paid were directly connected with or proximately resulted from the carrying on of a trade or business by the petitioners' *808 decedent. They were not, as in that case, paid for the protection or recovery of income. *820 See .
The petitioners also cite ; affirmed, per curiam (C.C.A., 6th Cir.), . The taxpayer in that case was found to be engaged in the real estate and investment business. In connection with that business he paid attorney fees in resisting an illegal attempt by a city to condemn and acquire certain of his property. We held, that the attorney fees paid were legal deductions from gross income, since they were paid as an incident to his business. That case is distinguishable from the proceeding at bar upon its facts.
In , the taxpayer contested a benefit assessment growing out of street widening and expended $9,000 for attorney fees and $600 for witness fees. , the court said:
* * * The attorneys' and witness fees were not paid for the purpose of defending the title to the real estate, but were paid solely to test the validity*809 of an assessment made by the city involuntarily, in so far as the company is concerned. * * * The Board correctly decided that these expenditures were an ordinary and necessary business expense * * *
There was no question in that proceeding but that the attorney and witness fees were directly connected with the business carried on by the taxpayer.
The petitioners argue that if these attorney fees had been paid by Ida B. Stone's brother during his lifetime or by his estate during the process of administration they would be legal deductions from gross income. They then argue that if so deductible they are likewise deductible by the petitioners' decedent when paid by her in 1934. Assuming that they would be deductibel if paid by the decedent's brother during his lifetime, or by his estate during the process of administration, we do not think it follows that they are likewise deductible as a business expense by the petitioners' decedent. The facts simply are that the petitioners' decedent as residuary legatee of her deceased brother's estate received property of a value of approximately $1,900,000 upon the distribution of the estate. The petitioners' decedent paid the attorney*810 fees to protect her right to hold those assets freed from the claim of the tax authorities of Pike County. This, we think, was a personal expense which was in no wise connected with the carrying on of a trade or business by the petitioners' decedent.
Reviewed by the Board.
Decision will be entered for the respondent.