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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