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SWIFT, J., concurring: I write separately to clarify why I
believe the fees paid by Metrobank to the FDIC are currently
deductible.
In INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 86-87 (1992),
the Supreme Court described two closely related types of costs
that are to be capitalized under section 263: (1) Costs incurred
in connection with the acquisition, creation, or enhancement of a
specific capital asset; and (2) costs that provide significant
benefits that accrue to a taxpayer in future years.
Recently, in analyzing costs allegedly incurred in
connection with the acquisition or creation of a capital asset,
three Courts of Appeals have reversed all or part of recent Tax
Court opinions. See Wells Fargo & Co. & Subs. v. Commissioner,
224 F.3d 874 (8th Cir. 2000), affg. in part and revg. in part
Norwest Corp. & Subs. v. Commissioner, 112 T.C. 89 (1999); PNC
Bancorp, Inc. v. Commissioner, 212 F.3d 822 (3d Cir. 2000), revg.
110 T.C. 349 (1998); A.E. Staley Manufacturing Co. & Subs. v.
Commissioner, 119 F.3d 482 (7th Cir. 1997), revg. and remanding
105 T.C. 166 (1995). In these opinions, because of the close
relationship of the above types of costs, the Courts of Appeals
use language and analyses that are relevant in the instant case
to the issue as to the capitalization of fees paid because they
allegedly provided to Metrobank significant future benefits.
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