[Code of Federal Regulations]
[Title 26, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.212-1]

[Page 312-315]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 1_INCOME TAXES--Table of Contents
 
Sec. 1.212-1  Nontrade or nonbusiness expenses.

    (a) An expense may be deducted under section 212 only if:

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    (1) It has been paid or incurred by the taxpayer during the taxable 
year (i) for the production or collection of income which, if and when 
realized, will be required to be included in income for Federal income 
tax purposes, or (ii) for the management, conservation, or maintenance 
of property held for the production of such income, or (iii) in 
connection with the determination, collection, or refund of any tax; and
    (2) It is an ordinary and necessary expense for any of the purposes 
stated in subparagraph (1) of this paragraph.
    (b) The term income for the purpose of section 212 includes not 
merely income of the taxable year but also income which the taxpayer has 
realized in a prior taxable year or may realize in subsequent taxable 
years; and is not confined to recurring income but applies as well to 
gains from the disposition of property. For example, if defaulted bonds, 
the interest from which if received would be includible in income, are 
purchased with the expectation of realizing capital gain on their 
resale, even though no current yield thereon is anticipated, ordinary 
and necessary expenses thereafter paid or incurred in connection with 
such bonds are deductible. Similarly, ordinary and necessary expenses 
paid or incurred in the management, conservation, or maintenance of a 
building devoted to rental purposes are deductible notwithstanding that 
there is actually no income therefrom in the taxable year, and 
regardless of the manner in which or the purpose for which the property 
in question was acquired. Expenses paid or incurred in managing, 
conserving, or maintaining property held for investment may be 
deductible under section 212 even though the property is not currently 
productive and there is no likelihood that the property will be sold at 
a profit or will otherwise be productive of income and even though the 
property is held merely to minimize a loss with respect thereto.
    (c) In the case of taxable years beginning before January 1, 1970, 
expenses of carrying on transactions which do not constitute a trade or 
business of the taxpayer and are not carried on for the production or 
collection of income or for the management, conservation, or maintenance 
of property held for the production of income, but which are carried on 
primarily as a sport, hobby, or recreation are not allowable as nontrade 
or nonbusiness expenses. The question whether or not a transaction is 
carried on primarily for the production of income or for the management, 
conservation, or maintenance of property held for the production or 
collection of income, rather than primarily as a sport, hobby, or 
recreation, is not to be determined solely from the intention of the 
taxpayer but rather from all the circumstances of the case. For example, 
consideration will be given to the record of prior gain or loss of the 
taxpayer in the activity, the relation between the type of activity and 
the principal occupation of the taxpayer, and the uses to which the 
property or what it produces is put by the taxpayer. For provisions 
relating to activities not engaged in for profit applicable to taxable 
years beginning after December 31, 1969, see section 183 and the 
regulations thereunder.
    (d) Expenses, to be deductible under section 212, must be ``ordinary 
and necessary''. Thus, such expenses must be reasonable in amount and 
must bear a reasonable and proximate relation to the production or 
collection of taxable income or to the management, conservation, or 
maintenance of property held for the production of income.
    (e) A deduction under section 212 is subject to the restrictions and 
limitations in part IX (section 261 and following), subchapter B, 
chapter 1 of the Code, relating to items not deductible. Thus, no 
deduction is allowable under section 212 for any amount allocable to the 
production or collection of one or more classes of income which are not 
includible in gross income, or for any amount allocable to the 
management, conservation, or maintenance of property held for the 
production of income which is not included in gross income. See section 
265. Nor does section 212 allow the deduction of any expenses which are 
disallowed by any of the provisions of subtitle A of the Code, even 
though such expenses may be paid or incurred for one of the purposes 
specified in section 212.
    (f) Among expenditures not allowable as deductions under section 212 
are the

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following: Commuter's expenses; expenses of taking special courses or 
training; expenses for improving personal appearance; the cost of rental 
of a safe-deposit box for storing jewelry and other personal effects; 
expenses such as those paid or incurred in seeking employment or in 
placing oneself in a position to begin rendering personal services for 
compensation, campaign expenses of a candidate for public office, bar 
examination fees and other expenses paid or incurred in securing 
admission to the bar, and corresponding fees and expenses paid or 
incurred by physicians, dentists, accountants, and other taxpayers for 
securing the right to practice their respective professions. See, 
however, section 162 and the regulations thereunder.
    (g) Fees for services of investment counsel, custodial fees, 
clerical help, office rent, and similar expenses paid or incurred by a 
taxpayer in connection with investments held by him are deductible under 
section 212 only if (1) they are paid or incurred by the taxpayer for 
the production or collection of income or for the management, 
conservation, or maintenance of investments held by him for the 
production of income; and (2) they are ordinary and necessary under all 
the circumstances, having regard to the type of investment and to the 
relation of the taxpayer to such investment.
    (h) Ordinary and necessary expenses paid or incurred in connection 
with the management, conservation, or maintenance of property held for 
use as a residence by the taxpayer are not deductible. However, ordinary 
and necessary expenses paid or incurred in connection with the 
management, conservation, or maintenance of property held by the 
taxpayer as rental property are deductible even though such property was 
formerly held by the taxpayer for use as a home.
    (i) Reasonable amounts paid or incurred by the fiduciary of an 
estate or trust on account of administration expenses, including 
fiduciaries' fees and expenses of litigation, which are ordinary and 
necessary in connection with the performance of the duties of 
administration are deductible under section 212, notwithstanding that 
the estate or trust is not engaged in a trade or business, except to the 
extent that such expenses are allocable to the production or collection 
of tax-exempt income. But see section 642 (g) and the regulations 
thereunder for disallowance of such deductions to an estate where such 
items are allowed as a deduction under section 2053 or 2054 in computing 
the net estate subject to the estate tax.
    (j) Reasonable amounts paid or incurred for the services of a 
guardian or committee for a ward or minor, and other expenses of 
guardians and committees which are ordinary and necessary, in connection 
with the production or collection of income inuring to the ward or 
minor, or in connection with the management, conservation, or 
maintenance of property, held for the production of income, belonging to 
the ward or minor, are deductible.
    (k) Expenses paid or incurred in defending or perfecting title to 
property, in recovering property (other than investment property and 
amounts of income which, if and when recovered, must be included in 
gross income), or in developing or improving property, constitute a part 
of the cost of the property and are not deductible expenses. Attorneys' 
fees paid in a suit to quiet title to lands are not deductible; but if 
the suit is also to collect accrued rents thereon, that portion of such 
fees is deductible which is properly allocable to the services rendered 
in collecting such rents. Expenses paid or incurred in protecting or 
asserting one's right to property of a decedent as heir or legatee, or 
as beneficiary under a testamentary trust, are not deductible.
    (l) Expenses paid or incurred by an individual in connection with 
the determination, collection, or refund of any tax, whether the taxing 
authority be Federal, State, or municipal, and whether the tax be 
income, estate, gift, property, or any other tax, are deductible. Thus, 
expenses paid or incurred by a taxpayer for tax counsel or expenses paid 
or incurred in connection with the preparation of his tax returns or in 
connection with any proceedings involved in determining the extent of 
his tax liability or in contesting his tax liability are deductible.

[[Page 315]]

    (m) An expense (not otherwise deductible) paid or incurred by an 
individual in determining or contesting a liability asserted against him 
does not become deductible by reason of the fact that property held by 
him for the production of income may be required to be used or sold for 
the purpose of satisfying such liability.
    (n) Capital expenditures are not allowable as nontrade or 
nonbusiness expenses. The deduction of an item otherwise allowable under 
section 212 will not be disallowed simply because the taxpayer was 
entitled under Subtitle A of the Code to treat such item as a capital 
expenditure, rather than to deduct it as an expense. For example, see 
section 266. Where, however, the item may properly be treated only as a 
capital expenditure or where it was properly so treated under an option 
granted in Subtitle A of the Code, no deduction is allowable under 
section 212; and this is true regardless of whether any basis adjustment 
is allowed under any other provision of the Code.
    (o) The provisions of section 212 are not intended in any way to 
disallow expenses which would otherwise be allowable under section 162 
and the regulations thereunder. Double deductions are not permitted. 
Amounts deducted under one provision of the Internal Revenue Code of 
1954 cannot again be deducted under any other provision thereof.
    (p) Frustration of public policy. The deduction of a payment will be 
disallowed under section 212 if the payment is of a type for which a 
deduction would be disallowed under section 162(c), (f), or (g) and the 
regulations thereunder in the case of a business expense.

[T.D. 6500, 25 FR 11402, Nov. 26, 1960; 25 FR 14021, Dec. 12, 1960, as 
amended by T.D. 7198, 37 FR 13685, July 13, 1972; T.D. 7345, 40 FR 7439, 
Feb. 20, 1975]