David Llewellyn and Kay Marie Rose - Page 17




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          503 U.S. 79, 86 (1992) (quoting Deputy v. du Pont, 308 U.S. 488,            
          496 (1940)).  Petitioners bear the burden of establishing their             
          right to deduct the disputed expenses.  Id. at 84, 86; Welch v.             
          Helvering, 290 U.S. 111, 114-116 (1933); A.E. Staley                        
          Manufacturing Co. & Subs. v. Commissioner, 119 F.3d 482, 486 (7th           
          Cir. 1997), revg. and remanding 105 T.C. 166 (1995).                        
               Under the current law on capitalization, an expenditure may            
          be deductible in one setting but capitalizable in a different               
          setting.  For example, in Commissioner v. Idaho Power Co., 418              
          U.S. 1, 13 (1974), the Supreme Court observed the following as to           
          wages paid by a taxpayer in its trade or business:                          

               Of course, reasonable wages paid in the carrying on of                 
               a trade or business qualify as a deduction from gross                  
               income. * * * But when wages are paid in connection                    
               with the construction or acquisition of a capital                      
               asset, they must be capitalized and are then entitled                  
               to be amortized over the life of the capital asset so                  
               acquired. * * *                                                        

          Thus, when an expense creates a separate and distinct asset, it             
          usually must be capitalized.  Commissioner v. Lincoln Sav. & Loan           
          Association, 403 U.S. 345 (1971); FMR Corp. & Subs. v.                      
          Commissioner, 110 T.C. 402, 417 (1998); Iowa-Des Moines Natl.               
          Bank v. Commissioner, 68 T.C. 872, 878, (1977), affd. 592 F.2d              
          433 (8th Cir. 1979).  When an expense does not create such an               
          asset, the most critical factors to consider are the period of              
          time over which the taxpayer will derive a benefit from the                 
          expense and the significance to the taxpayer of that benefit.               






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