Union Carbide Foreign Sales Corporation, et al. - Page 22





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          pay and the difference is attributable to the lease cancellation.            
          Petitioner’s characterization is no different from the arguments             
          that have been made in several cases considered by this and other            
          courts prior to the enactment of section 167(c)(2).  Except for              
          the holding in one circuit, courts have not permitted a lessee’s             
          allocation of a portion of the acquisition cost of a leased                  
          capital asset to the cancellation of a burdensome lease in order             
          to permit a business deduction under section 162.  The Supreme               
          Court, the Court of Appeals for the Second Circuit, and this                 
          Court have all reasoned that the value attributable to the                   
          lease’s income stream represents value that a third-party buyer              
          would be required to pay the seller for the leased asset.  As                
          pointed out above, no seller would part with a leased asset                  
          without receiving value for the income attributable to the lease.            
          Using that rationale, the Supreme Court approved the Court of                
          Appeals for the Second Circuit’s approach of allowing the                    
          acquisition cost (including the portion attributable to the value            
          of the lease) to be made part of the acquired asset’s depreciable            
          basis.                                                                       
               Petitioner’s argument was addressed about 40 years ago in               
          two seminal cases:  Cleveland Allerton Hotel, Inc. v.                        
          Commissioner, 166 F.2d 805 (6th Cir. 1948), revg. a Memorandum               
          Opinion of this Court dated May 7, 1947, and Millinery Ctr. Bldg.            








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