Metrocorp, Inc. - Page 29




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               in performing credit checks, appraisals, and other                     
               tasks intended to assess the profitability of a loan,                  
               the banks “stepped out of [their] normal method of                     
               doing business” so as to render the expenditures at                    
               issue capital in nature.  Encyclopaedia Britannica,                    
               Inc. v. Commissioner, 685 F.2d 212, 217 (7th Cir.                      
               1982).                                                                 

               The Court of Appeals for the Third Circuit, in PNC Bancorp,            
          Inc. v. Commissioner, 212 F.3d at 830, continued as follows                 
          (quoting from a portion of the taxpayer’s brief):                           

               the Tax Court proceeded from the clearly accurate                      
               premise that the expenses in question were associated                  
               with the loans, incurred in connection with the                        
               acquisition of the loans, or “directly related to the                  
               creation of the loans,” * * * to the faulty conclusion                 
               that these expenses themselves created the loans.  We                  
               conclude that the term “create” does not stretch this                  
               far.  In Lincoln Savings, it was the payments                          
               themselves that formed the corpus of the Secondary                     
               Reserve; therefore, it naturally follows that these                    
               payments “created” the reserve fund.  In * * * [the                    
               taxpayer's] case, however, the expenses are merely                     
               costs associated with the origination of the loans; the                
               expenses themselves do not become part of the balance                  
               of the loan. * * *  [Citation omitted.]                                

                    While purporting to apply the Lincoln Savings                     
                    language, both the Tax Court and the                              
                    government effectively have transformed that                      
                    language, by subtle but significant degrees,                      
                    from a test based on whether a cost “creates”                     
                    a separate and distinct asset, into a much                        
                    more sweeping test * * * . * * *                                  

          In PNC Bancorp, Inc. v. Commissioner, 110 T.C. at 370, we                   
          concluded that the costs in issue were “assimilated” into the               
          asset that was acquired.  In contrast, the Court of Appeals for             






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