(dissenting).
According to my understanding of the record, the undisputed facts established that most, if not all, of the attorneys’ fees in question were paid in an unsuccessful attempt to prevent criminal prosecution. The taxpayer claimed no deduction of the amount of the attorney’s fee paid for the handling of the case after the return of the indictment, because a taxpayer who has been prosecuted and convicted of a crime cannot take a tax deduction for an attorney’s fee incurred in his defense. Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 473, 64 S.Ct. 249, 88 L.Ed. 171; Commissioner of Internal Revenue v. Longhorn Portland Cement Co., 5 Cir., 148 F.2d 276; 4 Mertens, Law of Federal Income Taxation, § 25.36.
It seems to me the fact that the fees here involved were paid for services which antedated the indictment affords no sound basis for a distinction so far as tax deductions are concerned. The fees, I think, were not deductible ordinary and necessary expenses under Section 23(a), but were non-deductible personal expenses under Section 24 of the Code. Further, I think, the deduction of the fees would frustrate the sharply defined public policy against tax evasion embodied in Section 145(b) of the Code.
I, therefore, respectfully dissent.