Union Carbide Foreign Sales Corporation, et al. - Page 16




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          have to look outside the statutory language.  It appears that                
          section 167(c)(2) would be triggered irrespective of whether the             
          lease had a remaining term of 1 day or 10 years.  With that                  
          premise, it is difficult to accept petitioner’s argument that its            
          own circumstances should be exempted from the statutory                      
          requirements.  If we accept petitioner’s interpretation that the             
          lease must continue, a taxpayer would be able to avoid the                   
          intended effect of section 167(c)(2) merely by a simultaneous                
          acquisition of tangible property, cancellation of the “existing              
          lease”, and the renegotiation of a new lease.  Under petitioner’s            
          interpretation, section 167(c)(2) would be rendered impotent and             
          meaningless.  Whether we accept the fact that petitioner’s lease             
          terminated upon, 6 months after, or sometime more distant from               
          the acquisition of the vessel, the lease did not terminate until             
          petitioner acquired the vessel.  Accordingly, petitioner acquired            
          the vessel at a time when it was subject to the lease.11                     


               11 Respondent points out that in Kloppenberg & Co. v.                   
          Commissioner, T.C. Memo. 1986-325, where the taxpayer was                    
          similarly attempting to value a capital asset without considering            
          the value of the lease, this Court used the phrase “subject to               
          [a] lease” in the same manner in which respondent advocates that             
          it be used here.  In disagreeing with the taxpayer’s approach in             
          Kloppenberg, we stated:                                                      
               No one disputes that after May 3, 1978, * * * [the                      
               taxpayer] owned the * * * property in fee simple.                       
               However, * * * [the taxpayer’s] argument that the lease                 
               should therefore be disregarded ignores the fact that                   
               * * * [the taxpayer] owned a significant interest in                    
               the * * * property prior to the challenged transaction.                 
               It is not the value of the combined interest which                      
                                                              (continued...)           





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