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the Sixth Circuit's test if the Government
could prove that the information underlying
the complex patent could be transferred via
electronic transmission over telephone lines
and that the purchaser could use the
information in that form without receiving a
disk, tape, or document. We believe that the
characterization of property for purposes of
the ITC should not depend on the capacity or
reliability of "'affordable communications
technology'" at the time of transfer. Cf.
Comshare, Inc. v. United States, supra at
1143-1144 (suggesting the contrary
conclusion). [Majority op. pp. 24-25.]
Only in this regard, I agree with the majority.
VII. Apply Doctrine of Stare Decisis
To conclude, I would apply the doctrine of stare decisis in
this case. Except for the court in Comshare, no other court has
found that computer software is eligible for the investment tax
credit and/or accelerated depreciation deduction. I find no
compelling reason in the instant setting to depart from the view
that computer software does not qualify for the investment tax
credit, especially when because of firmly established jurisprudence
taxpayers (other than petitioner) have refrained from claiming an
investment tax credit with respect to computer software purchases.
COHEN, CHABOT, GERBER, and LARO, JJ., agree with this dissent.
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