The opinion of the court was delivered by: MCILVAINE
The above-entitled cause came on regularly for trial and the Court having duly considered the evidence and being fully advised in the premises now finds the following:
1. This action arises under the Act of June 25, 1948, c. 646, 62 Stat. 933, as amended, Title 28 of the United States Code Annotated, § 1346.
2. Plaintiff's claim is for the recovery of income tax paid in the year 1954 of $ 5,468.64 plus interest.
3. In his 1954 income tax return, plaintiff deducted $ 8,000 for attorneys' fees paid by him to Sherman T. Rock of the law firm of Paul, Lawrence & Rock of Pittsburgh, Pennsylvania.
5. On March 5, 1956, plaintiff paid said additional tax, interest and penalty to the District Director of Internal Revenue for the 23rd District of Pennsylvania.
6. On April 4, 1956, plaintiff filed with the District Director of Internal Revenue for the 23rd District of Pennsylvania a claim for refund of said additional tax, interest and penalty.
7. Defendant has conceded the issue on the alleged under-estimation of declaration of estimated tax leaving only the issue in the case of the matter of the deductibility of the attorneys' fees in the year 1954, and in the amount of $ 8,000 under Section 212 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 212.
8. The plaintiff, James A. Fisher, a resident of Pittsburgh, Pennsylvania, was married to Jane Scheers Fisher in October of 1943. They had three children, who in 1953, were aged nine, six and three, respectively.
9. The marriage having been unhappy, on October 6, 1953, Mr. Fisher at the request of his wife moved out of his house on a trial separation basis.
10. A few days after moving out, Mr. Fisher was contacted by the attorney for Mrs. Fisher who informed him Mrs. Fisher contemplated divorce and that there would have to be a permanent financial arrangement for Mrs. Fisher pending which there would have to be a temporary arrangement for her support.
11. On October 21, 1953, Mr. Fisher consulted Attorney Sherman T. Rock who advised him of Mrs. Fisher's legal right to alimony under the Pennsylvania law and of the approximate amount the Court might require him to pay Mrs. Fisher for support and maintenance in a proceeding of divorce from bed and board and in a non-support suit in County Court.
12. In the first meeting with Mr. Rock and thereafter until December 14, 1953, Mr. Fisher insisted to his attorney that his wife's claim for divorce was justified, that he did not wish to contest it and that he ...