Pelaez and Sons, Inc. - Page 20




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               Petitioner’s argument that the corporation should be allowed           
          to use its individual experience because respondent failed to               
          issue regulations or guidance as to the national weighted average           
          preproduction period for citrus trees is without merit.  The                
          plain language of section 263A requires that for a citrus farmer            
          such as petitioner, the preproductive period in the section                 
          263A(d)(1)(A)(ii) exception from section 263A capitalization is             
          measured by means of the nationwide weighted average                        
          preproductive period for citrus trees.  As indicated above,                 
          neither party was able to show that average.                                
               Petitioner also argues that the use of a nationwide average            
          preproduction period for each type of plant is a vague standard             
          or concept and that the statutory standard is vague and should be           
          invalidated.  Respondent counters that although no guidance was             
          published by the Secretary or respondent, the standard is not               
          vague.  Respondent also explained that the reason that Congress             
          used a nationwide weighted average preproductive period for each            
          type of plant was to ensure that one region of the country did              
          not have an economic advantage over another region because of               
          more favorable growing conditions.  So, e.g., if southern farmers           
          enjoy a longer growing season, they may be able to meet the 2-              
          year test and currently deduct their cost of production, whereas            
          northern farmers would not be able to take the current deductions           
          and would be required to capitalize the same expenses or costs.             






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Last modified: May 25, 2011