John and Louisa A. Hodel - Page 8

          election to capitalize preproductive expenses was not revocable             
          without the consent of the Commissioner, and therefore the                  
          taxpayer was bound by his original treatment of the expenses.               
          Id. at 331.                                                                 
               Although petitioners recognize the authority of our decision           
          in Estate of Wilbur v. Commissioner, supra, and agree that                  
          section 1.162-12(a), Income Tax Regs., does not permit taxpayers            
          to deduct expenses that were originally capitalized, they contend           
          that there is no prohibition against capitalizing expenses                  
          originally deducted.  Petitioners also raise the issue of whether           
          their deduction of farming expenses was an "irrevocable election"           
          as opposed to a simple "option" which they have chosen and now              
          are free to change at will.  Petitioners deducted preproductive             
          expenses attributable to the nursery on their original returns              
          and now wish to capitalize a portion of those expenses.  Based on           
          the record, we find that petitioners' request flies squarely in             
          the face of the doctrine of election.                                       
               The doctrine of election, as it applies to Federal tax law,            
          consists of the following two elements:  (1) There must be a free           
          choice between two or more alternatives; and (2) there must be an           
          overt act by the taxpayer communicating the choice to the                   
          Commissioner; i.e., a manifestation of choice.  Grynberg v.                 
          Commissioner, 83 T.C. 255, 261 (1984); Bayley v. Commissioner, 35           
          T.C. 288, 298 (1960).  Under the doctrine of election, a taxpayer           
          who makes a conscious election may not, without the consent of              

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