Metrocorp, Inc. - Page 67




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          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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