David J. Lychuk and Mary K. Lychuk, et al. - Page 54




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          business.24  The employees were paid specifically to perform work           
          as to the acquisitions, and the amount of the compensation that             
          ACC paid to the employees hinged directly on the number of                  
          installment contracts that it acquired, e.g., at least some of              
          the employees were entitled to receive a bonus in profitable                
          years.25  Thus, whereas the officers in Wells Fargo & Co. &                 
          Subs., supra, performed the typical services of bank employees,             
          services which could include work on a capital transaction as               
          part of the bank’s business in general, ACC’s employees were                
          hired and paid to perform services that necessarily would include           
          work on capital asset acquisitions.                                         
               The record here indicates specifically the portion of ACC’s            
          total compensation that was directly related to ACC’s acquisition           
          of the installment contracts, and, in accordance with Supreme               
          Court precedent (as well as jurisprudence from the Second                   
          Circuit, Fifth Circuit, and this Court), we consider as capital             
          expenditures that “proportion of the wages and salaries of                  
          employees who spend some of their working hours laboring on the             
          acquisition”.  Briarcliff Candy Corp. v. Commissioner, 475 F.2d             
          at 781; see Commissioner v. Idaho Power Co., 418 U.S. at 13; see            

               24 Of the total compensation paid to the disputed employees            
          in 1993 and 1994, 76 percent ($213,028/$280,222) and 65.4 percent           
          ($273,212/$418,065), respectively, was attributable to the                  
          acquisition of installment contracts.                                       
               25 We also bear in mind the statement in ACC’s PPM discussed           
          supra note 13.                                                              





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