- 54 -
that the exit fee, which was imposed by statute and not by
contract, was also part of that cost. If the only measurable
benefit to Metrobank resulting from payment of the exit fee is
that such payment enabled Metrobank to proceed with the purchase,
then I fail to see how the exit fee is anything other than a cost
incident to the purchase of the assets. There is nothing in the
record (or in FIRREA) to support the majority’s finding that:
“Metrobank paid the exit fee to the SAIF as a non-refundable,
final premium for insurance that it had already received.”
Majority op. p. 20 (emphasis added).4 Even if that were taken as
a statement with respect to Community, it would not justify a
current deduction for Metrobank any more than would Metrobank’s
payment of its indebtedness for Community’s unpaid employment
taxes and ad valorem taxes, which it assumed pursuant to the
agreement.
4. Conclusion
Petitioner bears the burden of proof, and the pleadings
clearly establish what it is that petitioner must prove, viz,
that the exit-fee-allocable payments were not a capital
expenditure. Clearly, respondent has failed to convince the
majority that petitioner enjoyed the long-term benefits claimed
for it by respondent. That, however, in no way satisfies
petitioner’s burden. Petitioner has failed to prove that the
4 To the contrary, see supra note 3.
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