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HALPERN, J., dissenting:
I. Introduction
We are faced here with a question of fact, whether
petitioner’s payments of the exit and entrance fees constitute
capital expenditures. Petitioner bears the burden of proving
that they do not. See Rule 142(a). I do not believe that
petitioner has carried that burden. Therefore, I would sustain
respondent’s deficiency determinations to the extent allocable to
respondent’s disallowance of deductions for those payments.
II. Background
A. Facts
This case was submitted for decision without trial, the
parties having stipulated or otherwise agreed to facts that each
believed sufficient to make his (its) case. See Rule 122(a).
The fact that this case was submitted upon a stipulated record
does not alter petitioner’s burden of proof. See Rule 122(b).
Following is a summary of the significant facts relied on by
petitioner.
Metrobank purchased certain assets of a failed savings
association from the Resolution Trust Company (the purchase, the
assets, Community, and the RTC, respectively). It did so
pursuant to a purchase and assumption agreement (the agreement),
which states that, as consideration for the assets (and certain
rights and options it acquired), Metrobank would pay to the RTC a
premium of $400,000 and assume certain deposit and other
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