Chester A. USRY, District Director of Internal Revenue, Appellant, v. Richard F. PRICE and May G. Price et al., Appellees, 325 F.2d 657

GEWIN, Circuit Judge. This is an appeal by the District Director of Internal Revenue from a

summary judgment of the District Court for the Eastern District of Louisiana holding that legal expenses incurred by the appellees, hereinafter referred to as the taxpayers, in a concursus proceeding brought by the California Company, were deductible under § 212 of the Internal Revenue Code of 1954. Appellant contends that the expenses were incurred in defense of title to land and thus must he capitalized. Taxpayers contend that the expenses were incurred in the collection of income, or in the alternative, for the management, conservation or maintenance of property held for the production of income.

We agree with the taxpayers and affirm the judgment of the court below. Prior to 1951, the California Company acquired oil and gas leases on a piece of property in Grand Bay in Plaquemines Parish, Louisiana, from both the taxpayers, and the State of Louisiana. Both thereafter made claims to the royalties. The California Company deposited the money in court and instituted a concursus proceeding. In 1954, the Supreme Court of Louisiana ruled that taxpayers were the owners of the property in question and therefore were entitled to the royalties. Three of the Louisiana Supreme Court Justices dissented.

The taxpayers attempted to deduct the legal expenses there incurred, but eventually acquiesced, paid the tax and abandoned their claim that such expenses were deductible. Subsequently, the California Company paid other funds into court which represented royalties for other wells on the same property, and filed a second concursus proceeding. In this second concursus proceeding, taxpayers pleaded res judicata as to the question of title and asserted their unqualified right to the royalties. The case was appealed to the Louisiana Supreme Court.

One of the Justices who dissented in the first ease, wrote the opinion in the second case, wherein the Louisiana Supreme Court held that the pleas of res judicata and judicial estoppel were well taken: “Since the issues in this case are an attempted re-hash of the issues raised and adjudicated in the first Price case, the pleas of res judicata and judicial estoppel are' well founded.” Another Justice, who had dissented in the first case, stated in a concurring opinion: “The correctness of that holding, [the former opinion holding that title was in the taxpayers] however, is not now before us, for in this case we are called upon only to review the correctness of a judgment of the lower court sustaining a plea of res judicata.” In every case where income is derived from the land one may find, lurking somewhere in the background, a question of title to the land.

Entitlement to income derived directly from the land is directly dependent upon title to the land from which the income was derived. In that broad general sense all income from real estate involves a real estate title. In this case it is not our province to adjudicate the issue of title, but to decide whether such issue has been adjudicated and settled; and if so, at what time. In the first concursus proceeding there was a real, actual and live title dispute; and the issue was carried all the way to the Louisiana Supreme Court for decision. That court settled the title question — or at least they say they did.

The last opinion of the Supreme Court, following an appeal from the decision in the second concursus proceeding, positively states that the first decision settled the question of title, and that the matter was res judicata when the second opinion was rendered. Anything further, said the Supreme Court of Louisiana, would be a “re-hash” of issues decided in the first case. Under the facts and in the circumstances of this case there can be no higher authority as to when the title to the land in question was finally adjudicated than the decision of the Supreme Court of the State of Louisiana.

We should not, and indeed we cannot, undertake a revision ®f the decision wherein the highest court of Louisiana has held that title was in the taxpayers; and when again called upon, forcefully stated that the issue had already been decided. We conclude, therefore, that the realities of the case do not permit the conclusion that a title question was involved in the second proceeding.

All that was decided in the second proceeding was that the taxpayers were entitled to the funds involved, not because they had issues as to their title adjudicated in the second proceeding, but for the very cogent, plain and unequivocal reason that the issue of title had already been adjudicated, and therefore, the money derived from the land belonged to them. It is clear, therefore, that taxpayers’ title to the property was not threatened and was not at stake in the second coneursus proceeding. However, the accumulated royalties were at stake.

Section 4815 of the coneursus statute found in Title 13 of the Louisiana Revised Statutes provides:. “The failure of anyone cited under R.S. 13:4814 to appear and answer within the time required by law, shall thereafter estop the person from claiming the money.” The State’s highest Court has said in effect that the taxpayers did not need to defend their title the second time. The State’s Legislature has said that taxpayers must timely prosecute their claim to the money deposited in the court in the coneursus proceeding. It is clear to us that taxpayers were doing the latter.

Legal expenses incurred in such activities are deductible under § 212 of the Internal Revenue Code of 1954: See Hochschild v. Commissioner, 161 F.2d 817 (2 Cir. 1947); and Rassenfoss v. Commissioner, 158 F.2d 764 (7 Cir. 1946). We have added little to what was said by the distinguished trial judge in the very clear and logical opinion written by him and reported in D.C., 209 F.Supp. 660. We fully concur in the result reached. The judgment is affirmed. . A concursus action is in the nature of an interpleader action. The statute provides: LSA-Rev.Stat. 13:4811.

Deposit in registry of court by third persons of money claimed by two or more persons. “Whenever any person, firm, partnership, corporation, or association of persons is in possession of any money, which is claimed by two or more persons, or upon which two or more persons are claiming a lien or privilege, then such person, firm, partnership, corporation, or association of persons holding the money, may deposit it in the registry of the district court having jurisdiction, and shall thereafter be relieved of all liability for the payment of the money on complying with the requirements set out in R.S. 13:4811 through 13:4817.” .

Applicable statutes and regulations: SEC. 212. EXPENSES FOR PRODUCTION OF INCOME. “In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year— “(1) for the production or collection of income; “(2) for the management, conservation, or maintenance of property held for the production of income; or “ (3) in connection with the determination, collection, or refund of any tax.” (26 U.S.C.1958 ed., Sec. 212) SEC. 263. CAPITAL EXPENDITURES. “(

a) General rule. — No deduction shall be allowed for — ■ “

(1) Any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate. * 3: * » # * * (26 U.S.C.1958 ed., Sec. 263.) Treasury Regulations on Income Tax (1954 Code): Sec. 1.212-1. Nontrade or nonbusiness expenses. — * * * * * » “(

k) Expenses paid or incurred in defending or perfecting title to property * * * constitute a part of the cost of the property and are not deductible expenses. * * * ” * * 3< Sec. 1.263 (a)-2. Examples of capital expenditures. The following paragraphs include examples of capital expenditures: * * * “(

c) The cost of defending or perfecting title to property.” . California Co. v. Price, 225 La. 706, 74 . California Co. v. Price, et al., 234 La. 338, 99 So.2d 743.