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Central Tex. Sav. & Loan Association v. United States, 731 F.2d
1181, 1183 (5th Cir. 1984)); Wells Fargo & Co. & Subs. v.
Commissioner, supra at 883-884 (a separate and distinct capital
asset always provides long-term benefits). Therefore,
respondent’s broader assertion of long-term benefits necessarily
included the narrower assertion that the fees were part of
Metrobank’s cost of acquiring capital assets.1
More importantly, the stipulated record establishes that the
fees were paid in connection with Metrobank’s asset acquisition.
We should therefore consider the factual, causal, and legal
consequences of that relationship, even if respondent didn’t
expressly raise it as an issue, and even though the case at hand
was submitted fully stipulated under Rule 122. In Ware v.
Commissioner, 92 T.C. 1267 (1989), the taxpayer asserted that we
should reconsider a case submitted under Rule 122 because the
Commissioner allegedly had relied on a theory raised for the
first time on brief. We denied the taxpayer’s motion, and noted
that under appropriate circumstances we can rest our decision for
the Commissioner on reasons neither set forth in the notice of
deficiency nor relied upon by the Commissioner. See Ware v.
Commissioner, supra at 1269, and cases cited therein; Bair v.
1 See majority op. p. 18, which states that “Expenses must
generally be capitalized when they either: (1) Create or enhance
a separate and distinct asset or (2) otherwise generate
significant [long-term] benefits”. (Emphasis added.)
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