Newhouse Broadcasting Corp. and Subsidiaries, et al. - Page 18




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                  With respect to the requirement of the supply or service                             
            transition rule that property be “necessary” to carry out a                                
            written supply or service contract, petitioner argues:                                     
                  Expenditures incurred by a cable operator acquiring                                  
                  property placed in service to provide cable television                               
                  service under the terms of a cable television franchise                              
                  agreement are normal, appropriate expenses and hence                                 
                  ‘necessary’ as that term is understood in the context                                
                  of business expenditures.                                                            
            In support of that argument, petitioner cites Commissioner v.                              
            Heininger, 320 U.S. 467 (1943), and Carbine v. Commissioner,                               
            83 T.C. 356 (1984), affd. 777 F.2d 662 (11th Cir. 1985), cases                             
            dealing with the requirement that business or profit seeking                               
            related expenses be “ordinary and necessary”.  Secs. 162(a), 212.                          
            Petitioner relies on Messrs. Bjorklund’s and Kearse’s affidavits                           
            to establish that the expenses in question are normal and                                  
            appropriate expenses to provide cable television service.                                  
                        2.  Respondent’s Arguments                                                     
                  In support of respondent’s motion, respondent argues that                            
            property is "readily identifiable with and necessary to carry out                          
            a written supply or service contract" only if it is "specifically                          
            described" in the contract and/or related (pre-1986) documents.                            
            Respondent argues that, because the subject property was not                               
            "mentioned, described, referred to, particularized, or identified                          
            in any way * * * as to quantity, description, cost, vendor, model                          
            number, purpose or any other characteristics" in either the                                
            contract or in any pre-1986 related document, such property                                





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