Stephen J. Roling and Peggy A. Roling - Page 16




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          in certain circumstances, the payee receiving the advanced                  
          royalty payments on standing timber to take a depletion deduction           
          from his gross income in the year the payments are made.  And               
          section 1.612-3(b)(3), Income Tax Regs., allows the payer of                
          amounts under a "minimum royalty provision" to deduct them when             
          paid, but only in connection with mineral property.                         
               Petitioners' payments are not described in section 1.612-              
          3(b)(1), or (3), Income Tax Regs., and their downpayments must be           
          capitalized.  Section 1.631-2(e)(1), Income Tax Regs., requires             
          that amounts paid for timber cutting rights be treated as the               
          cost of timber and "constitute part of the lessee's depletable              
          basis of the timber, irrespective of the treatment accorded such            
          payment in the hands of the lessor."1                                       
               Once petitioners' counsel presented to respondent's counsel            
          sufficient evidence that two of the contracts represented                   
          situations where the timber was cut in the same year the payments           
          were made, respondent conceded the issue within a reasonable                
          time.  See Harrison v. Commissioner, supra at 265; Ashburn v.               
          United States, supra; Wickert v. Commissioner, 842 F.2d 1005 (8th           

               1Generally, sec. 162 requires that an item be paid or                  
          incurred and the benefit exhausted during the taxable year to be            
          a business deduction.  Where the value of the item extends beyond           
          the taxable year, that is evidence that the expenditure is a cost           
          of acquisition, a capital item.  See Wells Fargo & Co. v.                   
          Commissioner, 224 F.3d 874 (8th Cir. 2000), affg. in part and               
          revg. in part sub nom. Norwest Corp. v. Commissioner, 112 T.C. 89           
          (1999); Central Tex. Sav. & Loan Association v. United States,              
          731 F.2d 1181, 1183 (5th Cir. 1984); see also sec. 1.461-1,                 
          Income Tax Regs.                                                            




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