Union Carbide Foreign Sales Corporation, et al. - Page 19




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          success in only one circuit and has not met with success in this             
          Court, the Court of Appeals for the Second Circuit, and the                  
          Supreme Court.14                                                             
               Petitioner attempts to bolster its argument by referencing              
          several cases where transactions were split or bifurcated to                 
          permit differing results with respect to each portion of the                 
          transaction.  With one exception,15 the courts have not permitted            
          a current deduction to terminate a burdensome lease where the                
          lessee purchased the leased asset.  There are cases permitting a             
          current deduction for the cost of terminating a burdensome lease             
          or contract obligation, but those cases do not involve the                   



               13(...continued)                                                        
          because of the value of the stream of income attributable to the             
          lease.  In the factual setting of this case, the fair market                 
          value of the vessel (as opposed to the value without considering             
          the existing lease) included the stream of rental income.                    
          Accordingly a willing seller would not have ignored the value                
          attributable to the use of the vessel, especially where the                  
          lessee was obligated to pay for that use, irrespective of whether            
          the lessee used the vessel.  When petitioner acquired the vessel,            
          it acquired the physical asset and the right to its use.                     
          Petitioner in attempting to attribute the majority of the                    
          acquisition cost to an expense for canceling the lease, ignores              
          its ability to use or lease the vessel.  Accordingly, it is                  
          difficult to reconcile petitioner’s approach to value.                       
               14 To some extent the case law that predated the enactment              
          of sec. 167(c)(2) is instructive in interpreting the statute.                
          The very approach suggested by petitioner has been thoroughly                
          considered by this and other courts.                                         
               15 The exception is to be found in Cleveland Allerton Hotel,            
          Inc. v. Commissioner, 166 F.2d 805 (6th Cir. 1948), revg. a                  
          Memorandum Opinion of this Court dated May 7, 1947, which is                 
          discussed in detail later in this opinion.                                   





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