Richard D. Nelson - Page 17




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            Whether November Is Entitled To Write Off or Depreciate Over the                           
            10-year Term of the Lease The Improvements Made to the Chestnut                            
            Property                                                                                   
                  The Chestnut property had been used for processing fish and                          
            needed substantial improvements before bingo operations could                              
            commence.8  November expended $222,171, $166,553, and $25,915                              
            during 1990, 1991, and 1992, respectively, to convert it into a                            
            bingo operation.  Based on those expenditures, November claimed                            
            depreciation on a 10-year basis (equal to the 10-year term of the                          
            lease) in the respective amounts of $30,545, $40,168, and $41,464                          
            for the 1991 through 1993 tax years.  Respondent determined that                           
            petitioner was entitled to use a 31.5-year recovery period under                           
            the MACRS, resulting in allowances of $7,274, $12,376, and                                 
            $13,165, respectively.  On brief, petitioner also claimed that                             
            November would, alternatively, be entitled to deduct the entire                            
            expenditure (about $400,000) as lease acquisition cost that would                          
            not be subject to the MACRS requirements.                                                  
                  Petitioner had relied on section 1.162-11(b), Income Tax                             
            Regs., which held that lessees may be entitled to use the length                           
            of the lease as the recovery period for leasehold improvements.                            
            Respondent correctly points out that section 168(i)(8) (added by                           
            the Tax Reform Act of 1986) made the above-referenced regulation                           



                  8 Because bingo is a game of chance where the bingo operator                         
            is the only participant who always “wins”, it might be said that                           
            the Chestnut property was to continue being used for the                                   
            “processing of fish”.                                                                      





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