David J. Lychuk and Mary K. Lychuk, et al. - Page 20




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          are related to the acquisition of the installment contracts but             
          argue primarily that the expenditures are deductible as routine,            
          recurring business expenses arising primarily from an employment            
          relationship rather than from a capital transaction.  Petitioners           
          argue secondly that the installment contracts expenditures are              
          deductible because they are not described in either section                 
          263(a) or the related regulations.                                          
               We agree with respondent in part and with petitioners in               
          part.  We agree with respondent that ACC must capitalize the                
          installment contracts expenditures to the extent of the salaries            
          and benefits.9  We conclude that ACC’s payment of the salaries              
          and benefits was directly related to its acquisition of the                 
          installment contracts.  We agree with petitioners that ACC may              


               9 We allow ACC to deduct under sec. 165(a) the portion of              
          those expenditures that was attributable to the installment                 
          contracts which it never acquired.  ACC may deduct those amounts            
          for the respective years in which it ascertained that it would              
          not acquire the related contracts.  See Ellis Banking Corp. v.              
          Commissioner, 688 F.2d 1376, 1382 (11th Cir. 1982), affg. in part           
          and remanding in part T.C. Memo. 1981-123.  See generally PNC               
          Bancorp, Inc. v. Commissioner, 110 T.C. 349, 359, 362 (1998)                
          (Commissioner allowed banks to deduct loan origination costs                
          expended in connection with loans which were not successfully               
          approved), revd. on other grounds 212 F.3d 822 (3d Cir. 2000).              
          Respondent argues that petitioners have failed to prove the                 
          portion of the expenditures attributable to the installment                 
          contracts which it never acquired.  We disagree.  We have found             
          as a fact that ACC did not acquire approximately 62 percent of              
          the installment contracts which were offered to it in each of the           
          subject years.  We hold that ACC may deduct for 1993 and 1994 62            
          percent of the installment contracts expenditures attributable to           
          installment contracts which in those years it decided not to                
          acquire.  See Cohan v. Commissioner, 39 F.2d 540, 543-544 (2d               
          Cir. 1930).                                                                 




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