Metrocorp, Inc. - Page 64




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          they are incurred “in connection with” the acquisition of a                 
          capital asset.  See American Stores Co. & Subs. v. Commissioner,            
          114 T.C. 458, 469 (2000).  But see Wells Fargo & Co. & Subs. v.             
          Commissioner, 224 F.3d 874, 885-888 (8th Cir. 2000)                         
          (distinguishing expenditures directly related to capital                    
          transactions from expenditures indirectly related to such                   
          transactions), affg. in part and revg. in part Norwest Corp. &              
          Subs. v. Commissioner, 112 T.C. 89 (1999).                                  
               Respondent Sufficiently Raised Asset Acquisition Issue                 
               According to the majority, respondent failed to argue that             
          the exit and entrance fees were connected with Metrobank’s asset            
          acquisition; we should therefore defer consideration of this                
          “theory” to another day.  Majority op. p. 11.  I disagree.                  
               Although respondent didn’t specifically argue that the fees            
          were paid to acquire Community’s assets and deposits, respondent            
          did argue that the fees created significant long-term benefits              
          for Metrobank.  The presence of significant long-term benefits is           
          relevant to the case at hand because it serves to distinguish               
          payments that result in the acquisition of capital assets from              
          those that don’t.  See sec. 263 (cost of “permanent improvements            
          or betterments” must be capitalized); INDOPCO, Inc. v.                      
          Commissioner, supra at 87-88 (long-term benefit is an undeniably            
          important and prominent, if not predominant, characteristic of a            
          capital asset within the meaning of section 263, in part citing             






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