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 ofPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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