- 67 -
wanted to acquire. Indeed, payment of the fees was legally
required, if Metrobank was to consummate the acquisition in the
form it desired; Metrobank accordingly agreed in its bid to pay
the fees to the FDIC. See majority op. p. 5. The record thus
establishes that the fees were part of Metrobank’s cost of
acquisition; I can’t imagine any evidence petitioner could have
presented to support a contrary conclusion.2 See Ware v.
Commissioner, supra, and Pagel, Inc. v. Commissioner, supra.
The majority assert that considering the relationship
between fees paid and assets acquired requires us to “second
guess” petitioner’s business judgment. See majority op. pp. 22-
23. To the contrary, I accept that judgment; the payment of the
fees was a necessary element of the transaction that petitioner,
in its best business judgment, actually decided to achieve.3
2 By contrast, in the cases relied upon by the majority, it
was clearly possible that the taxpayers could have offered
relevant evidence to support their position, or the Court
believed that the record did not permit it to decide the issue.
See Concord Consumers Housing Coop. v. Commissioner, 89 T.C. 105,
106-107 n.3 (1987) (Court did not consider whether taxpayer was
sec. 216 cooperative housing corporation because neither party
addressed the issue and Court could not tell from the record);
Leahy v. Commissioner, 87 T.C. 56, 64-65 (1986) (Commissioner
originally contended that partnership was not entitled to
investment tax credit on ground that partnership was not owner of
the property; later ground was alleged failure to attach
statement to return, as required by regulations).
3 It appears that the only way Metrobank could have acquired
assets and deposits from Community, without paying exit and
entrance fees, would have been to acquire control of Community
(continued...)
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