FRGC Investment, LLC, James P. Mehen, Tax Matters Partner - Page 18




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          * * * of * * * property having a useful life substantially beyond           
          the taxable year” is a capital expenditure.  Sec. 1.263(a)-2(a),            
          Income Tax Regs.  The same expenditure that may be deductible in            
          one setting might be capitalized in another, if it is incurred in           
          connection with the acquisition of a capital asset.  Commissioner           
          v. Idaho Power Co., 418 U.S. 1, 13 (1974); Ellis Banking Corp. v.           
          Commissioner, 688 F.2d 1376, 1379 (11th Cir. 1982), affg. in part           
          and remanding in part on another ground T.C. Memo. 1981-123.                
               Petitioner recognizes the applicability of the “process of             
          acquisition” test in this case to decide whether expenditures are           
          currently deductible or whether they must be capitalized.  See              
          Honodel v. Commissioner, 76 T.C. 351, 365 (1981), affd. 722 F.2d            
          1462 (9th Cir. 1984).  The process of acquisition test focuses on           
          the direct relationship between the cost and the acquisition, so            
          that costs originating in the process of acquiring a capital                
          asset are considered capital expenditures.  Woodward v.                     
          Commissioner, 397 U.S. 572 (1970); Lychuk v. Commissioner,                  
          116 T.C. 374, 390 (2001).                                                   
               In applying the process of acquisition test to the facts of            
          this case, we analyze what FRGC was attempting to acquire when it           
          incurred its expenses in 1998.  FRGC’s operating agreement and              
          private placement materials specifically state that FRGC’s sole             
          business purpose was to engage in predevelopment activities to              
          acquire suitable property for Flagstaff Ranch.  FRGC and Cherry             






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