Metrocorp, Inc. - Page 27




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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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