- 37 -
There is nothing to indicate that there were any additional facts
bearing on this case that could have been introduced. This case
was submitted on the stipulated facts, and there is nothing to
indicate that petitioner was not aware of its burden of proving
entitlement to the claimed deductions, including the need to
establish that the fees were not incurred in connection with the
acquisition of assets.
This is not a case where respondent issued a narrowly drawn
notice of deficiency and subsequently advanced new grounds not
directly or implicitly within the ambit of the determination.
See Pagel, Inc. v. Commissioner, 91 T.C. 200, 212 (1988), affd.
905 F.2d 1190 (8th Cir. 1990); Sorin v. Commissioner, 29 T.C.
959, 969 (1958), affd. per curiam 271 F.2d 741 (2d Cir. 1959);
Weaver v. Commissioner, 25 T.C. 1067, 1085 (1956). While the
language contained in the notice of deficiency does not
specifically state that the fees were costs incurred in
connection with the acquisition of a capital asset, that is a
reason for capitalization that is within the scope of the
determination. The failure to enumerate every theory that could
support a determination should not prevent us from deciding this
case on what we consider to be the correct application of the law
to the facts presented. See Rendina v. Commissioner, T.C. Memo.
1996-392; Barnette v. Commissioner, T.C. Memo. 1992-595, affd.
without published opinion sub nom. Allied Management Corp. v.
Page: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 NextLast modified: May 25, 2011