- 68 -
I also disagree with the majority’s suggestion that our
reliance on Metrobank’s asset acquisition would unfairly surprise
petitioner. Petitioner was aware that respondent would rely on
two cases referred to by the majority (see majority op. p. 24
note 10): Darlington-Hartsville Coca-Cola Bottling Co. v. United
States, 273 F. Supp. 229 (D.S.C. 1967), affd. 393 F.2d 494 (4th
Cir. 1968), and Rodeway Inns of Am. v. Commissioner, 63 T.C. 414
(1974).4 The majority try to distinguish these cases on the
ground that the taxpayer in each “purchased a capital asset
incident to the payment of the expenses in dispute”. Majority
op. p. 24 note 10. Assuming the majority are correct,
respondent’s reliance on these cases put petitioner on notice of
the importance of the connection between the payment of the fees
and Metrobank’s asset acquisition.
3(...continued)
and then merge or consolidate with it. See majority op. p. 16;
Financial Institutions Reform, Recovery, and Enforcement Act of
1989, Pub. L. 101-73, sec. 206(a)(7), 103 Stat. 183, 195,
currently codified at 12 U.S.C. sec. 1815(d)(3)(A) (Supp. V,
1999)). Of course, this is not what Metrobank did. Moreover,
such a transaction might have required Metrobank to acquire all
assets (and assume all liabilities, including unknown and
contingent liabilities) of Community, rather than a portion of
them.
4 See Brief for Petitioner at 22 (briefs were simultaneous),
which states: “The Respondent has cited Darlington-Hartsville
Coca-Cola Bottling Co. v. United States, 393 F.2d 494 (4th Cir.
1968) and Roadway Inns of America v. Commissioner, 63 T.C. 414
(1974) as support for Respondent’s argument that the exit and
entrance fees were paid as part of a plan to produce a positive
business benefit for future years.”
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