U.S. Bancorp and Its Consolidated Subsidiaries - Page 13

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          unextinguished cost of the first lease was regarded as part of              
          the cost of the second lease that had to be amortized over the              
          term of the second lease.                                                   
               Petitioner argues that terminating the First Lease resulted            
          in an economic loss in the year of termination and that the                 
          termination provided no future benefit.  Petitioner further                 
          argues that Pig & Whistle Co. v. Commissioner, supra, and Phil              
          Gluckstern's, Inc. v. Commissioner, supra, in which the                     
          termination fees were capitalized, are distinguishable from the             
          present case.  Petitioner maintains that in those cases the                 
          lessee canceled a lease only to enter into a second lease of the            
          same property with the same lessor, and that therefore the second           
          lease was in substance a modification of the first lease.  In               
          petitioner’s view, the payments made to cancel the old lease were           
          therefore actually made to obtain the modifications whose benefit           
          extended throughout the term of the replacement leases.  Because            
          the computers covered by the two leases in the case at hand were            
          different from each other, petitioner maintains that the Second             
          Lease was not merely a modification of the First Lease.                     
               The cases brought to our attention by petitioner and                   
          respondent occupy opposite ends of a spectrum.  At one end is the           
          case where a lessee pays a lessor to terminate a lease and no               
          subsequent lease is entered into between the parties.  In such a            
          case the termination fee is clearly deductible in the year                  





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