
    444 F. 2d 1120
    ANNE ARCHBOLD, BY JOHN D. ARCHBOLD, EXECUTOR OF THE ESTATE OF ANNE ARCHBOLD, DECEASED v. THE UNITED STATES
    [No. 99-68.
    Decided July 14, 1971]
    
      
      Ellis W. Manning, attorney of record, for plaintiff. Wenchel, Schulman <& Mamdng, of counsel.
    
    
      Mark Segal, with wliom was Assistant Attorney General Johnnie M. 'Walters, for defendant. Philip B. Miller and Joseph Kovner, of counsel.
    Before Cowekt, Chief Judge, Laramoee, Dureee, Davis, ColliNs, SkeltoN, and Nichols, Judges.
    
   ColliNs, Judge,

delivered the opinion of tbe court:

This suit for refund of Federal income taxes presents a novel issue under section 170 of the Internal Bevenue Code of 1954. Involved is the deductibility, as a charitable contribution, of legal fees paid by the taxpayer to a private law firm for the firm’s sendees in opposing highway construction through land which the taxpayer had earlier given to the United States for park purposes. The parties stipulated the relevant facts before the trial commissioner, and the Government now asks the court to review the commissioner’s adverse determination.

The plaintiff is executor of the estate of Anne Archbold, the taxpayer and original plaintiff herein.

On November 10, 1924, Anne Arcbbold donated to tbe United States a sizable tract of land located in the District of Columbia in what was then known as Foundry Branch Yalley. The land was given to become “a part of the Park System of the District of Columbia” and, together with adjacent land donated about the same time by Charles C. Glover, became a major part of what is today known as Glover-Archbold Park. The taxpayer’s gift was accepted, and the land, as intended, became a part of the park, parkway, and playground system of the District of Columbia, administered by the National Park Service, an agency of the Department of the Interior.

Since its inception, Glover-Archbold Park has had an insecure existence, its intactness threatened repeatedly by the designs of highway planners. As early as the 1940’s the District of Columbia sponsored a plan to construct a highway through the park, but, perhaps due to the protests of Anne Archbold, Charles C. Glover, Jr. (a son of Charles C. Glover), and others, a final plan was never adopted.

After passage of the Federal-Aid Highway Act of 1956, 70 Stat. '374, ch. 4'62, a new crisis began to brew. A major highway plan was developed for the District of Columbia which called for the construction of a highway through the park which would consume approximately one-half of its total area. Anne Archbold retained the Washington, D.C., law firm of Douglas, Obear & Campbell to oppose such proposed use of the park. After a public hearing before the Commissioners of the District of Columbia, which concluded on January 7, 1958, and at which Mrs. Archbold was represented, the plan was altered so as to exclude the park. For its services in representing her, Mrs. Archbold, during 1958, paid Douglas, Obear & Campbell a fee of $10,000.

The proposal to construct a highway through the park was again revived early in 1959. On July 25, 1959, Anne Archbold filed suit in the United States District Court for the District of Columbia for the purposes of (a) enjoining the District of Columbia Commissioners and others from proceeding with the contemplated highway, and (b) obtaining a declaratory judgment to the effect that construction of such, a highway would violate the terms of her gift. In denying the Commissioners’ motions to dismiss and for summary judgment the court stated in part:

The court is convinced that an actual controversy does exist here as to the authority of the defendants Seaton and Wirth to make park land available for the contemplated highway and as to the authority of the District Commissioners to convert such park land to highway use, that there are herein genuine issues of material fact, and that the court should not grant any of the motions to dismiss or for summary judgment.

Archbold v. McLaughlin, 181 F. Supp. 175, 180 (D.D.C. 1960). The case was later dismissed as moot, however, after passage of the so-called “Northwest Freeze” in I960. The “Northwest Freeze” was a provision contained in the National Capital Transportation Act, 74 Stat. 537, 540, July 14, 1960, which prohibited the construction of any freeway or highway in certain areas of Northwest Washington west of 12th Street, N.W., before July 1, 1965. The land donated by Mrs. Archbold was in the “Northwest Freeze” area.

In 1960, Mrs. Archbold paid Douglas, Obear & Campbell $19,003.07 for services rendered from May 15, 1958, in opposing the threatened highway construction. In 1961, she paid the firm $6,500 for similar services from January 29, 1960, including services rendered in connection with prosecution of the district court action.

The other legal fee with which we are here concerned was paid by Mrs. Archbold in 1962. The fee, in the amount of $4,500, was paid to Douglas, Obear & Campbell for terminating the district court litigation and for opposing construction of the proposed Three Sisters Bridge across the Potomac Diver. The bridge plan called for placing an interchange at the southern extremity of Glover-Archbold Park and for construction of a highway running the length of the park.

In her return for the taxable year 1958, Mrs. Archbold claimed, as a charitable contribution under section 170 of the code, the $10,000 she had paid Douglas, Obear & Campbell as described above. She listed the fee as paid for “* * * services solely in connection with dedication of lands for public purposes, namely, Glover-Archbold Parkway, Washington, D.C., and for tbe preservation of that public park from encroachment * * The deduction was disallowed. Because of the disallowance taxpayer did not attempt to deduct the legal fees paid in 1960, 1961, and 1962. Instead, she timely filed claims for refund for all four taxable years. When they were all disallowed in full, this suit followed. Plaintiff asks judgment in the amount of $35,262.10, plus interest.

Section 170 of the Code allows as a deduction any charitable contribution which is made within a given taxable year. Subsection (c) defines a charitable contribution, in pertinent part, as “a contribution or gift to or for the use of * * * the United States or the District of Columbia, but only if the contribution or gift is made for exclusively public purposes.”

One matter should be disposed of at the outset. Most of the Government’s arguments are premised upon its assertion that Mrs. Archbold’s expenditures of legal fees were motivated, at least significantly, by self-interest, and that she was a primary beneficiary of Douglas, Obear & Campbell’s success in forestalling highway construction through the park. This assertion is based on allegations of personal interest which the taxpayer made in her 1959 lawsuit and on the fact that taxpayer’s principal place of residence, Hillandale, was adjacent to the donated land. Suffice it to say that we regard the allegations in the taxpayer’s petition in the district court as having been made for jurisdictional purposes and as having little, if any, probative value for present purposes. Moreover, while it is established that Hillandale is adjacent to the donated land, there is nothing in the record to indicate whether the construction of a highway through the park would have detracted from the value of Hillandale or actually enhanced it. So, although the Government contends that the legal fees involved herein were not incurred “for exclusively public purposes” because they provided the taxpayer with extensive personal benefits, we must agree with the trial commissioner that:

* * * The record, taken as a whole, does not support this contention. The taxpayer sought no personal benefit and none inured to her save that which would naturally flow to her as a member of the general public from the preservation of the Park from encroachment. * * 4$

The real question with which we are confronted here, in terms of the statute, is whether in this case there has been a contribution or gift “for the use of” the United States.

It is, of course, well established that in order for a gift to be deductible under section 170 it need not be made directly to a qualified donee. However, it must at least be made “for the use of” a qualified donee.

The Government urges that “for the use of” means “in trust for” and that “[t]he test in each case is whether the organization [qualified donee] has full control of the donated funds, and discretion as to their use, so as to insure that they will be used to carry out its functions and purposes.” Eev. Eid. 62-113, 1962-2 Cum. Bull. 10,11. To the Government, control of the donation by the donee is essential. But the Government’s position is belied by substantial authority, including the Treasury regulations themselves. The regulations provide that—

* * * unreimbursed expenditures made incident to the rendition of services to an organization contributions to which are deductible may constitute a deductible contribution. For example, tlie cost of a uniform without general utility which is required to be worn in performing donated services is deductible. Similarly, out-of-pocket transportation expenses necessarily incurred in rendering donated services are deductible. * * * [Treas. Eeg. § 1.170-2 (a) (2) (1969).]

The donees in the examples given in the regulations have no control, in any sense, over the expenditures. Nevertheless, the Commissioner of Internal Eevenue has determined that the expenditures are “for the use of” the donees. All that the regulations apparently require is that the expenditure be “incident” to the rendition of services to a qualified donee. Moreover, the Internal Eevenue Service has ruled that non-reimbursed, out-of-pocket expenses directly attributable to the performance of voluntary services for a qualified donee are “for the use of” that donee. See Rev. Rul. 58-279,1958-1 Cum. Bull. 145.

It should perhaps be noted that there is no comparable regulation respecting expenditures made incident to the donation of a deductible gift. However, we do not take this omission to mean that the Commissioner would disallow a deduction for such expenditures. Eather, if a deduction is allowable for expenses incident to the performance of nondeductible services, it would seem to follow, a fortiori, that incidental expenditures in the making of a deductible gift would be deductible.

In Orr v. United States, 843 F. 2d 553 (5th Cir. 1965), the court considered the deductibility of several expenses incurred by an individual in rendering services to the Methodist Church. In so doing it stated that in order for such expenses to meet the statutory test, “the charitable work must be the cause of the payments.” Id. at 557 (emphasis supplied).

This case is made slightly thorny by the fact that elements of the executive branch of the Government were acting in concert with District of Columbia officials in seeking to use part of the park for highway purposes. Although the precise role of the Federal Government in the park controversy is not clear from the record, it is clear that the Secretary of the Interior and the Director of the National Park Service were named as defendants in the district court suit, and that in the suit they were represented by the Department of Justice. The executive branch is only one branch of the Government, however, and in the matter of accepting or rejecting charitable gifts to the United States we think it is not the primary branch. Under the Constitution, Congress has plenary power over the District of Columbia, see U.S. CoNst. art. I, § 8, as well as controlling authority over the “property belonging to the United States,” U.S. CoNst. art. IV, § 3. With respect to gifts to the United States, Congress has the predominant voice (especially where the donation concerns the District of Columbia). It was the Congress which accepted Mrs. Arch-bold’s gift of land initially, and we think it was Congress’ voice which was the crucial voice vis-a-vis approval or disapproval of the donor’s expenditures of legal fees to preserve her gift. Congress’ only expression of sentiment on the matter of highway construction through Glover-Archbold Park is contained in the “Northwest Freeze,” and for that reason we view the United 'States as having approved Mrs. Archbold’s efforts and expenditures.

Nor do we think that the fact that incidental expenditures directly attributable to, and caused by, a charitable donation come some time after the donation necessarily disqualifies them under section 170. We can conceive of no valid reason, especially considering the policy underpinnings of section 170, for imposing a time limit on the deductibility of out-of-pocket expenses incurred incident to a charitable donation.

In this case there can be no doubt that taxpayer’s expenditures of legal fees were caused by, and directly attributable to, attempts to destroy the intactness and much of the land area of the park. As such, we think the expenditures were incidental to the original gift and that they are deductible. Cf. Estate of Philip A. Caroll, 38 T.C. 868 (1962), acquiesced in, 1963-2 Cum. Bull. 4.

It ought to be said, too, that the rule of this case need not go beyond donors attempting to preserve and implement their gift, or the purposes for which they made it. The giver of property for a particular purpose enjoys a continuing relationship to bis gift which others do not have. To allow such a donor to obtain a charitable deduction for efforts to preserve the integrity of the gift (if acquiesced in by the donee) is not the same as allowing the public-at-large to secure deductions (for example) for legal attempts to improve the environment or to maintain public lands free of encroachment. Since the latter type of case implicates additional factors, it is not, and should not be, decided by this one.

For the foregoing reasons, plaintiff is entitled to recover, judgment is entered for plaintiff, and the case is returned to the trial commissioner for a determination of the amount of recovery under Kule 131 (c).

Nichols, Judge,

concurring :

I concur in the result. I deem it futile and irrelevant to ask whether the donee “accepted” the legal services here involved. If it is done at all, to do the job right we should inquire whether the donee “accepted” the services rendered under each of several bills, in different tribunals, including appearances in court, before the D.C. Commissioners, and apparently, lobbying in Congress. Eather, I would hold, if donor has -made, and donee has accepted, an unquestionable charitable donation, donor has a right to further deductions for any subsequent ancillary expenses deemed necessary to prevent donee from diverting the gift to purposes other than those donor intended, and this is true whether donee is a public body or a private charity.

FINDINGS op Fact

The court, having considered the stipulation of the parties, and the briefs and arguments of counsel, makes findings of fact as follows:

1. Plaintiff John D. Archbol'd of Upperville, Virginia, is the executor of the estate of Anne Archbold, deceased, the original plaintiff herein (and hereinafter referred to as the taxpayer), who died March 26,1968.

2. At all times material, the taxpayer was a citizen of the United States and maintained her principal place of residence, commonly known as Hillandale, at 8905 Reservoir Road, Washington, D.C. She held a life interest in this estate on the dates here in issue. The taxpayer kept her books and records and filed her Federal income tax returns on the cash basis of accounting and on the 'basis of the calendar year.

3. In 1893, the District of Columbia acquired upon dedication by various property owners a right-of-way, 100 feet in width, for a public road (designated on highway plans as Arizona Avenue) through what was then known as Foundry Branch Valley. No such road has been built.

4. In 1923, the taxpayer and Charles C. Glover (hereinafter referred to as Mr. Glover) were owners of adjacent tracts of land, containing in the aggregate approximately 105 acres, located in the District of Columbia in what was then known as Foundry Branch Valley.

5. Mr. Glover donated 77.5 acres of land so located to the District of Columbia “for park and playground purposes” on December 31, 1923. On June 6, 1924, the Commissioners of the District of Columbia, under authority of an Act of Congress dated June 6, 1924 (Pub. L. 203, 68th Cong., 43 Stat. 464), accepted, as part of the park system of the District of Columbia, the gift made by Mr. Glover. The tract of land was to be known as “The Glover Parkway and Children’s Playground.”

6. In accepting the donation, the District of Columbia Commissioners reserved “the right to modify, open, widen or extend any street or streets, or to open any alley or alleyways through said land so designated for park and playground purposes which in the judgment of the Commissioners may be necessary or expedient for the proper development of the highway plan for the District of Columbia, or any changes or modifications thereof which may be made in accordance with law.”

7. On November 10, 1924, the taxpayer donated to the United 'States, for incorporation into the park system of the District of Columbia, the following parcels of real estate owned by her and lying along Foundry Branch between Glover Parkway and Reservoir Road: (a) all that part oí parcel 29/1 lying on the west side of Arizona Avenue between Glover Parkway and Reservoir Road; and (b) that part of parcel 29/1 lying between the easterly line of Arizona Avenue and the easterly line of 42d Street, as proposed by the then current District of Columbia Highway Plan. The dedication of parcel (b) was to be effective only in case the land lying east of the proposed 42d Street and adjacent thereto was subdivided by the taxpayer, her heirs or assigns.

8. On February 25, 1925, the Chief of Engineers, United States Army, was authorized and directed by an Act of Congress (Pub. L. 469, 68th 'Cong., 43 Stat. 978) to accept as an addition to the park system of the District of Columbia the land thus donated by the taxpayer. Congress in that Act designated the tract of land as the “Archbold Parkway.”

9. On March 8, 1933, the taxpayer formally waived the restrictions regarding the portion of parcel 29/1 lying east of Arizona Avenue by conveying that property to the United States by fee simple deed. The conveyance was stated by the deed to be in consideration of the interest of the taxpayer in the development of the park system of the National Capital.

10. The properties thus dedicated by Mr. Glover and the taxpayer became part of the park, parkway, and playground system of the District of Columbia, subject to the jurisdiction of the National Park Service, an agency of the Department of the Interior, and have been and still are collectively known both as Glover-Archbold Park and as Glover-Arch-bold Parkway.

11. The Glover-Archbold Parkway consists of 183 acres acquired in part by the above-noted donations from Mr. Glover and the taxpayer and in part by purchase by the National Capital Planning Commission under the provisions of the Capper-Cramton Act of 1930 (Pub. L. 284,7lst Cong., 46 Stat. 482, 485) authorizing the purchase of lands “necessary and desirable for the suitable development of the National Capital park, parkway, and playground system.”

12. In the late 1940’s, the District of Columbia Department of Highways sponsored a plan to develop a major highway through the length of Glover-Archbold Parkway. A bill was introduced in Congress in 1948 (H.R. 4849, 80th Cong., 2d Sess.) to authorize the construction of such a highway. The route was then known as the Arizona Freeway, but in 1952 its name was changed to Glover-Archbold Parkway.

13. On April 16, 1948, the National Park Service entered into a memorandum of agreement with the District of Columbia regarding the construction through the Park of a “scenic highway for through traffic” of the park-road type adapted to the topography of Foundry Branch Valley, which at that time was referred to as the Arizona Freeway. The agreement specified, in part, that the route was “considered essential to provide additional and improved traffic facilities in the District of Columbia and to provide adequate facilities for vehicular access,” and that the District of Columbia right-of-way was “not adequate either in its location or width to construct a properly designed highway.” It was mutually agreed that the National Park Service would make available additional land in the park areas as required for construction of the parkway, and the District of Columbia would make available for park purposes that portion of the right-of-way not necessary for the parkway.

14. Between 1948 and 1959 preliminary design work and engineering studies were conducted by the National Park Service and the Highway Department of the District of Columbia in accordance with the 1948 agreement. At the same time, planning studies were conducted by various agencies and committees concerned with transportation planning and comprehensive planning for the District of Columbia and the surrounding metropolitan region. No final plan was ever adopted.

15. In 1948 and subsequent years, the taxpayer, Charles C. Glover, Jr. (a son of the above-mentioned Mr. Glover) and various organizations and interested citizens repeatedly protested the adoption of plans for the construction of such a highway.

16. Following the adoption of the Federal-Aid Highway Act of 1956 (Pub. L. 627, 70 Stat. 374), which provided for the Interstate Highway System, a major highway plan was developed for the city of Washington which involved Glover-Archbold Parkway as well as other parkway plans.

17. Following a public hearing before the Commissioners of the District of Columbia, which concluded on January 7, 1958, the Commissioners decided to place the route of the proposed major traffic artery in areas other than Glover-Archbold Park. The taxpayer was represented at this hearing.

18. During her 19,58 taxable ye'ar, the taxpayer paid a fee of $10,000 to the Washington, D.C., law firm of Douglas, Obear & Campbell for services in representing her in connection with the protest made against the proposed highway construction.

19. The taxpayer claimed this $10,000 payment as part of her itemized deductions for charitable contributions under the Internal Revenue Code on her Federal income tax return for the 1958 taxable year. The schedule of contributions attached to that return listed the fee thus paid as paid for “* * * services solely in connection with dedication of lands for public purposes, namely, Glover-Archbold Parkway, Washington, D.C., and for the preservation of that public park from encroachment * *

20. The deduction thus claimed was disallowed upon examination and audit of the 1958 income tax return by the Internal Revenue Service. The taxpayer paid the deficiency resulting from the disallowance of this deduction, together with interest assessed thereon.

21. The proposal to construct a highway through the Park was again revived early in 1959. At that time, the Commissioners of the District of Columbia received an appropriation of $880,000 in the District of Columbia Appropriation Act for the fiscal year ending June 80, 1960, for the construction of two structures as a part of a major high-speed limited access four-lane divided parkway estimated to cost $1,980,000.

22. Conrad Wirth, Director, National Park Service, testified before the Fiscal Affairs Subcommittee of the Senate Committee on the District of Columbia in April 1962 to the effect that approximately 50 percent of the area of Glover-Archbold Park would 'have been made use of for a highway under this proposal.

23. The taxpayer’s principal place of residence, Hillandale, was adjacent to the donated land. Measured by a line drawn due west from the dwelling house situated on Hillandale, the proposed highway route was approximately 200 feet from the border of the property, approximately 600 feet from the house. The house situated on the property overlooked the donated land and the proposed highway route. The house is approximately 250 feet above sea level whereas the donated land over which the highway would have been constructed is from 100 to 150 feet above sea level.

24. During the years in suit, the District of Columbia valued Hillandale (approximately 45 acres) for real estate taxation purposes at $259,492 'and the improvements thereon at $152,880 for the period January 1,1958, to July 1,1959, and at $392,416 and $112,900, respectively, for the period July 1, 1959, to December 81,1962.

25. On July 25, 1959, the taxpayer filed suit in the United States District Court for the District of Columbia for the purposes of (a) enjoining the District of Columbia Commissioners and others from proceeding with the contemplated “public highway” through the donated land; and (b) obtaining a declaratory judgment to the effect that the construction of such a highway would violate the terms on which the land donated by the taxpayer had been dedicated to the United 'States Government. Charles O. Glover, Jr., the Audubon Society of the District of Columbia, the Committee of 100 on the Federal City and other individuals and organizations were permitted by the court to intervene, at various dates, as plaintiffs in this action.

26. In her suit for an injunction, taxpayer alleged as reasons in support of her complaint that she sought only to assure the carrying out of the terms on which the land had been donated by her to the United States; that she owned property adjacent to Glover-Archbold Parkway and had a direct interest in seeing the terms of her gift carried out; that construction of the proposed highway would destroy the terrain of more than 50 percent of Glover-Archbold Park; that she was now the owner of the property within the bounds of a right-of-way, known as “Arizona Avenue,” running through Parcel 29/1 of the District of Columbia; that the construction of the highway would have been a trespass on the property in the Arizona Avenue right-of-way which the District of Columbia did not own or have the right to use; that it would have been violative of the terms of the trust dedication for park purposes made by taxpayer; that it would have been in violation of and trespass upon her rights to a portion of the Arizona Avenue right-of-way; and that it would have resulted in irreparable injury to the taxpayer, and in the wanton destruction of Glover-Archbold Parkway.

27. Motions filed on the part of the District of Columbia Commissioners to dismiss the action and for summary judgment were denied by the court in a memorandum opinion on January 27, 1960. In its memorandum opinion, the court stated, in part:

The court is convinced that an actual controversy does exist here as to the authority of the defendants Seaton and Wirth to make park land available for the contemplated highway and as to the authority of the District Commissioners to convert such park land to highway use, that there are herein genuine issues of material fact, and that the court should not grant any of the motions to dismiss or for summary judgment.

28. The National Capital Transportation Act of July 14, 1960 (Pub. L. 86-669, 74 Stat. 537) included a provision known as the “Northwest Freeze” which prohibited the construction of any freeway or highway in certain areas of Northwest Washington west of 12th Street, N.W., before July 1, 1965. The land donated by the taxpayer was in the area in which the Northwest Freeze was effective.

29. By order dated May 25, 1961, Judge McGuire of the United States District Court for the District of Columbia, with the agreement of all parties, dismissed the then pending lawsuit without prejudice because the enactment of Pub. L. 86-669 containing the Northwest Freeze made the action presently moot.

30. On January 29, 1960, the taxpayer’s counsel, Douglas, Obear & Campbell, rendered a bill in the amount of $19,003.07 consisting of a fee of $18,500 for services from May 15,1958, in opposing tbe threatened highway construction, together with related disbursements of $503.07. The taxpayer paid this bill in her 1960 taxable year.

31. On January 3, 1961, the taxpayer’s counsel, Douglas, Obear & Campbell, rendered a bill in the amount of $6,500 for services from January 29, 1960, in opposing the threatened highway construction and in connection with the prosecution of the above-mentioned action. The taxpayer paid this bill in her 1981 taxable year.

32. Later in 1961, a new proposal was advanced for the construction of the Three Sisters ‘Bridge across the Potomac River with an interchange to be placed at the southern extremity of Glover-Arohbold Park. A corollary of this proposal would have been the construction of a highway north from the interchange up the length of the Park. The taxpayer and others again resisted this proposal for the use of the Park for highway purposes before the Commissioners of the District of Columbia and through other channels, and the proposal was ultimately abandoned. In this matter, the taxpayer was again represented by the law firm of Douglas, Obear & Campbell.

33. On January 3, 1962, Douglas, Obear & Campbell rendered a bill in the amount of $4,500 for services performed during 1961 in connection with the termination of the litigation commenced in 1959 and for their representation of the taxpayer in again opposing the proposed Three Sisters Bridge. The taxpayer paid this bill in her 1962 taxable year.

34. On April 2 and 3,1962, the Fiscal Affairs Subcommittee of the Committee on the District of Columbia, United States Senate, held hearings on S. 2436 (87th Cong., 2d Sess.), a bill to transfer to the Secretary of the Interior, for administration as a part of the National Capital Parks System, all right, title, interest and control of the right-of-way held by the Government of the District Of Columbia for an avenue or parkway in Glover-Archbold Park. S. 2436 was passed by the Senate on July 15,1962, and sent to the House of Representatives where similar hearings were held by the Special Subcommittee on Traffic, Streets and Highways of the Committee on the 'District of Columbia on July 23, 1962. No report -on the 'bill was filed by the Committee, however, and the bill consequently expired at the end of the fifth Congress.

35. Because of the disallowance for 1958 of the charitable deduction claimed as described above, the taxpayer did not claim as charitable deductions on her Federal income tax returns for the taxable years 1960, 1961, and 1962 the fees of $19,003.07, $6,500, and $4,500 paid in the years 1960,1961, and 1962, respectively, to Douglas, Ofoear & Campbell.

36. The taxpayer timely filed claims for the refund of Federal income tax (including interest assessed and paid thereon) paid by her for the taxable years 1958, 1960, 1961, and 1962, on the grounds that the amounts paid to Douglas, Obear & Campbell in connection with the above-described matters constituted allowable charitable deductions under section 170 of the Internal Revenue Code.

37. The refund claims for the taxable years 1958,1960,1961, and 1962, respectively, were disallowed in 'full to the extent of the alleged charitable deductions.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover. Judgment is entered for plaintiff, and the case is returned to the trial commissioner for a determination of the amount of recovery under Rule 131 (c). 
      
      The court reaches the same result as did Chief Commissioner Marion T. Bennett, upon whose opinion, findings of fact, and recommended conclusion of law the court has relied heavily.
     
      
       The stipulation of facts contains the following paragraph:
      “In her suit for an injunction, decedent alleged as reasons in support of her complaint that she sought only to assure the carrying out of the terms on which the land had been donated by her to ithe united States; that she owned property adjacent to Glover-Archbold Parkway and had a direct interest in seeing the terms of her gift carried out; that construction of the proposed highway would destroy the terrain of more than 50 percent of Glover-Archbold Park; that she was now the owner of the property within the bounds of a right-of-way, known as ‘Arizona Avenue,’ running through Parcel 29/1 of the District of Columbia; that the construction of the highway would have been a .trespass on the property in the Arizona Avenue right-of-way which the District of Columbia did not own or have the right to use; that it would have been violative of the terms of the trust dedication for park purposes made by decedent; that it would have been in violation of and trespass upon her rights to a portion of the Arizona Avenue right-of-way; and that it would have resulted in irreparable injury to the decedent, and in the wanton destruction of Glover-Archbold Parkway.”
     
      
       Plaintiff does not maintain that the taxpayer made a contribution or gift “to” the united States.
     
      
       In this case a direct gift of the legal fees to the united States was hardly a feasible alternative in view of the fact that the Government was cooperating with the District of Columbia.
     
      
      
         Treas. Reg. § 1.170-2(a) (2) (19693 provides that “[n]o deduction is allowable for contribution of services.”
     