- 40 -
majority op. note 9, it is also correct that the context shows that
the Senate Finance Committee report does not require the "broad
interpretation" that the majority and the court in Comshare give to
the term "tangible". Further, to me, it is clear from other parts
of the Senate Finance Committee and the Committee of Conference
reports that Congress intended a distinction between tangible and
intangible property by declaring that "Intangible property, such as
patents and copyrights, does not qualify as section 38 property."
S. Rept. 1881, supra, 1962-3 C.B. at 858; H. Rept. 1447, 87th
Cong., 2d Sess. (1962), 1962-3 C.B. 402, 516.
Thus, the legislative history does not clarify the narrow
problem we deal with herein.
VI. Majority Sets Forth No Test or Standard To Determine the
Characterization of Property That Has Both Intangible and Tangible
Aspects
The majority's holding destabilizes existing law without
substituting or improving the intrinsic value test with a coherent
standard to fill the vacuum. Further, the majority finds fault
with the court's interpretation in Comshare, Inc. v. United States,
27 F.3d 1142 (6th Cir. 1994), of the tangibility test by stating:
By focusing on whether a taxpayer's investment
can be put to productive use in the absence of
the tangible medium, the Sixth Circuit's
approach would conceivably characterize both
the information underlying a complex patent
that could only be conveyed to and used by a
purchaser if embodied in some tangible medium
and the associated intellectual property
rights of that patent as tangible personal
property for purposes of the ITC. Arguably,
however, that result would be different under
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