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K�RNER, J., dissenting: The majority, relying on Norwest
Corp. & Subs. v. Commissioner, 108 T.C. ___ (1997), filed this
date, concludes that the computer software in issue is tangible
for purposes of the investment tax credit and for purposes of the
accelerated cost recovery system (ACRS). I disagree with the
conclusion reached in Norwest, and respectfully dissent from its
application to this case.
I. Majority Opinion
The majority holds that based on Norwest, the software is
tangible, and further that Sprint was the owner of the software.
I did not have a vote in Norwest, and therefore was unable to
voice my opposition at the time of its adoption. In Norwest, the
Court offers an expansive analysis that discredits the intrinsic
value test; unfortunately, its analysis of its own test is
nowhere near as thorough. Indeed, one of the faults the Court
found in Ronnen v. Commissioner, 90 T.C. 74 (1988), was that it
lacked "rigorous analysis". Norwest Corp. & Subs. v.
Commissioner, supra at __ (slip op. at 19). One would expect
that the Norwest majority, in light of such murky reasoning as it
perceived in Ronnen, would take the opportunity to clear the air
with a definitive test, or at the very least offer some
compelling reasoning to abandon the established precedent of this
Court. Instead, they summarily conclude, with virtually no
analysis, that the software was tangible. This conclusion is
based on their interpretation of the legislative history of the
investment tax credit that the tangibility requirement should be
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