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FOLEY, J., concurring in result only: I agree with the
majority's holding. Specifically, I agree that our analysis
should focus on the nature of the rights petitioner acquired. I
do not agree, however, with two aspects of the majority's
opinion. The majority's examination in part II.C of "the
Distinction Between Seismic Data and a Computer Program" is
unpersuasive. Majority op. p. 20. Moreover, this analysis is
unnecessary under the new approach adopted by the majority, which
focuses on the underlying property rights in, rather than the
physical characteristics of, the asset acquired. In addition,
the legislative history accompanying the investment tax credit
does not support the majority's assertion in part II.E that
petitioner's acquisition of software is "precisely the type of
investment Congress intended to encourage in enacting the ITC."
Majority op. p. 29. This is an unfounded statement of
congressional prescience rather than congressional intent. The
legislative history relied on by the majority related to the
original enactment of the ITC in 1962. At that time, Congress
probably did not foresee the myriad of technological innovations
relating to computer software. Therefore, the legislative
history accompanying the ITC provides minimal, if any, guidance
in determining whether petitioner's purchase qualifies for the
credit.
I agree with the majority that "resolution of the issue
before the Court should begin with the term 'tangible personal
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