49 T.C. 522">*522 Respondent determined1968 U.S. Tax Ct. LEXIS 173">*174 income tax deficiencies against petitioners for the years 1962 and 1963 in the amounts of $ 10,534.43 and $ 679.04, respectively.

The parties have agreed on the allowance and disallowance of certain medical expenses claimed by petitioners on their Federal income tax returns for the years 1962 and 1963. Petitioners have also agreed that $ 677.24 of the total legal expenses claimed as a medical expense was correctly disallowed by respondent. These agreed adjustments can be given effect in the Rule 50 computation.

The only issue for decision is whether petitioners are entitled to deduct as a medical expense under section 213(a), I.R.C. of 1954, ¹ amounts paid for legal services relating to guardianship proceedings for Jayne H. Gerstacker which enabled her to receive treatment at a Milwaukee sanitarium for her mental and emotional condition.

49 T.C. 522">*523 FINDINGS OF FACT

Many of the facts have been stipulated by the parties. The1968 U.S. Tax Ct. LEXIS 173">*175 stipulation of facts and exhibits attached thereto are incorporated herein by this reference.

Petitioners Carl A. and Jayne H. Gerstacker are husband and wife whose legal residence was Midland, Mich., at the time they filed their petition herein. They filed joint Federal income tax returns for the calendar years 1962 and 1963 with the district director of internal revenue at Detroit, Mich.

Prior to the years in issue, Jayne H. Gerstacker (herein called Jayne) had a long history of emotional instability, necessitating frequent hospitalization and the care of physicians and psychiatrists. At the beginning of 1962, Jayne's condition further deteriorated and she left hospitals on at least two occasions without the authority of her physicians, thereby making it difficult to give her proper treatment. It became necessary to obtain temporary detention orders from a local Probate Court while Jayne was a patient at a hospital in Michigan, but such orders were only effective for a maximum period of 60 days. In addition, the psychiatrists recommended to Carl that Jayne be admitted to the Milwaukee Sanitarium Foundation at Wauwatosa, Wis., for a long period of hospitalization, and that Carl1968 U.S. Tax Ct. LEXIS 173">*176 secure guardianship orders over her person to assure her detention at said institution so that proper medical treatment could be administered.

Guardianship proceedings were simultaneously begun in Midland, Mich., and Milwaukee, Wis., on July 13, 1962, and appropriate guardianship orders were subsequently entered in both jurisdictions in 1962. During the course of the Michigan guardianship proceedings it was established by Carl that Jayne could not manage her own financial affairs; that she was mentally disturbed; and that she was violent towards persons who came in contact with her outside of the home. Because of Jayne's violent tendencies and hostility toward her husband, her presence in the family home caused a disturbing, if not intolerable, situation.

In July 1962, Jayne was admitted to the Milwaukee Sanitarium. In the late summer of 1963, due to an improvement in her mental health, Jayne was discharged from the sanitarium to continue treatment on an outpatient basis. At that time the guardianships were immediately terminated in both Wisconsin and Michigan.

In May 1962, before Jayne's admittance to the Milwaukee Sanitarium, she had retained a Detroit attorney, John Feikens, 1968 U.S. Tax Ct. LEXIS 173">*177 to counsel her concerning her course of action. Feikens became acquainted with Jayne's personal history and thereupon recommended that she undergo 49 T.C. 522">*524 treatment at the sanitarium and further that she agree to the appointment of a guardian. Feikens' law firm represented Jayne in her guardianship proceedings in both Michigan and Wisconsin, with the aid of the law firm of Wake, Prosser, Zimmerman, and Quale in Wisconsin. Feikens, or members of his firm, kept in frequent contact with Jayne and her physicians from the date of her admittance to the sanitarium until the date of her discharge late in the summer of 1963. Feikens' firm also represented Jayne in the proceedings which led to the termination of the guardianship orders in both Michigan and Wisconsin.

The legal fees and reimbursable expenses paid to such firms were as follows:

Carl retained legal counsel who worked cooperatively with Jayne's attorneys in securing the guardianship orders. The law firm of Currie and Currie represented him in the guardianship proceeding in Michigan, and that firm retained the law firm of1968 U.S. Tax Ct. LEXIS 173">*178 Godfrey and Kahn to represent him in the guardianship proceeding in Wisconsin. The legal fees and reimbursable expenses paid to such firms were as follows:

The county court for Milwaukee appointed Charles L. Goldberg as Jayne's guardian ad litem, for which the following fees and reimbursable expenses were paid:

Goldberg met several times with Jayne at the sanitarium and conferred periodically with Carl.

Petitioners deducted all the above legal fees and reimbursed expenses as medical expenses on their tax returns in the years they were paid. In his notice of deficiency the respondent disallowed the medical expense deductions claimed for such legal expenses.

OPINION

Petitioners contend that the legal expenses incident to the guardianship proceedings for Jayne were proximately related to the medical care she received at the Milwaukee Sanitarium during her confinement there. They emphasize that Jayne was dangerous to herself and to those around her prior to the commencement of the guardianship proceedings and her admittance to the sanitarium; that it was impossible1968 U.S. Tax Ct. LEXIS 173">*179 49 T.C. 522">*525 to keep her in an institution without the guardianship proceedings; and that psychiatrists had strongly urged that only medical care administered over a long period of time would help alleviate her mental and emotional condition. Furthermore, they point to the fact that Jayne's mental condition was sufficiently improved after 1 year in the Milwaukee Sanitarium so that she continued as a day patient and was officially released from the hospital. Her guardianship was then discharged.

Respondent counters with the arguments that under these circumstances the deductions claimed for legal fees are precluded by section 262, which prohibits the deduction of personal expenses, and that the legal services rendered to petitioners did not constitute "medical care" as that term is defined in section 213(e)(1). ²

1968 U.S. Tax Ct. LEXIS 173">*180 We agree with the respondent. The legal fees claimed by petitioners do not come within the statutory definition of "medical care." The provisions of section 213(e)(1) must be narrowly construed. See Commissioner v. Bilder, 369 U.S. 499">369 U.S. 499 (1962); and H. Grant Atkinson, Jr., 44 T.C. 39">44 T.C. 39 (1965). Petitioners' attempt to equate legal expenses with the usual medical expenses fails to recognize the sharp distinction between expenses for actual "diagnosis, cure, mitigation, treatment, or prevention of disease" and nonmedical expenses, particularly those that are merely preparatory to the actual treatment. It is clear that typical medical expense is one which bears directly on the "treatment" of some physical or mental function or structure of the body. Here the legal services rendered by the attorneys retained by petitioners cannot be characterized as "treatment" for any mental defect. The attorneys provided no medical advice, opinions, or treatment, nor was it expected that their services would cause Jayne's mental disorder to be corrected.

The only provision of the Internal Revenue Code which could be construed1968 U.S. Tax Ct. LEXIS 173">*181 as allowing an indirect expense as "medical care" is section 213(e)(1)(B) under which expenses "for transportation primarily for and essential to medical care" may be deducted. This is a limited exception provided by Congress. Any other indirect expenses do not fall within the statutory definition of "medical care."

The line between direct and indirect expenses relating to "medical care" is illustrated by the Supreme Court's opinion in 369 U.S. 499">Commissioner v. Bilder, supra. There the taxpayer was ordered by his physician to spend the winter in Florida as part of the regimen of medical treatment. He deducted as medical expense the rent paid for his Florida apartment. The Supreme Court, in holding the expense not deductible, adopted the Commissioner's position that it was the purpose of Congress, 49 T.C. 522">*526 in enacting section 213(e)(1)(A) of the 1954 Code, to deny deductions for all personal or living expenses incidental to medical treatment other than the cost of transportation of the patient alone, that exception having been expressly added by subparagraph (B) to the definition of "medical care." Consequently, we must reject the effort made by1968 U.S. Tax Ct. LEXIS 173">*182 petitioners here to carve out another exception for indirect expenses which Congress has not seen fit to provide. See H. Grant Atkinson, Jr., supra at 49. To conclude otherwise would open the floodgates for the deduction of innumerable expenses having only an indirect relation to "medical care."

In addition, the circumstances which gave rise to the legal services obtained by petitioners were permeated by personal and family considerations. Jayne retained her attorneys to look after her personal problems. Carl also retained his attorneys for personal reasons. His attorneys gave no assistance to the physicians and psychiatrists who treated his wife and were in no position to render medical advice and opinions. Likewise, the expense of maintaining a guardian for Jayne was of a purely personal nature. ³ The guardian was Jayne's personal representative. With the approval of the appointing court, he was to look after Jayne's personal and business affairs. He did not treat Jayne; he did not assist the physicians and psychiatrists; and he in no way gave medical opinions and advice relative to Jayne's treatment.

1968 U.S. Tax Ct. LEXIS 173">*183 It may be that the legal services paid for by petitioners influenced the general well-being and disposition of Jayne and alleviated what had become an intolerable family situation. However, it is settled law that expenses generally beneficial to a taxpayer's health and well-being but permeated with personal and family considerations do not constitute "medical care" as defined in section 213(e)(1) and the regulations promulgated thereunder. See Edward A. Havey, 12 T.C. 409">12 T.C. 409 (1949); John J. Thoene, 33 T.C. 62">33 T.C. 62 (1959); and 44 T.C. 39">H. Grant Atkinson, Jr., supra.In the Havey case, on which the petitioners place heavy reliance, we said (12 T.C. 409">12 T.C. 411-412):

In approaching this question it is necessary to have in mind the basic concept of section 24(a)(1) of the code that personal, living, and family expenses are not deductible. Thus, many expenses, such as the cost of vacations, though undoubtedly highly and directly beneficial to the general health, or athletic club expenses by means of which an individual keeps physically fit, are not deductible because they fall within1968 U.S. Tax Ct. LEXIS 173">*184 the category of personal or living expenses. To be deductible as medical expense, there must be a direct or proximate relation between the expense and the diagnosis, cure, mitigation, treatment, or prevention of disease or the expense must have been incurred for the purpose of affecting some structure or function of the body.

In determining allowability, many factors must be considered. Consideration should be accorded the motive or purpose of the taxpayer, but such factor is 49 T.C. 522">*527 not alone determinative. To accord it conclusive weight would make nugatory the prohibition against allowing personal, living, or family expenses. Thus also it is important to inquire as to the origin of the expense. Was it incurred at the direction or suggestion of a physician; did the treatment bear directly on the physical condition in question; did the treatment bear such a direct or proximate therapeutic relation to the bodily condition as to justify a reasonable belief the same would be efficacious; was the treatment so proximate in time to the onset or recurrence of the disease or condition as to make one the true occasion of the other, thus eliminating expense incurred for general, 1968 U.S. Tax Ct. LEXIS 173">*185 as contrasted with some specific, physical improvement? [Emphasis supplied.]

In a similar manner, the critical factor in this case is that the legal services were not rendered as a part of a course of "treatment" for Jayne's mental illness. They did not have a direct or proximate therapeutic effect on her mental disorders.

Accordingly, we hold that all of the deductions claimed for legal expenses connected with the guardianship proceedings are not allowable as medical expenses under section 213(a). They must be treated as nondeductible personal expenses under section 262.

To reflect the agreement of the parties on some issues and the conclusion reached herein on the disputed issue,

Decision will be entered under Rule 50.