Jeffrey and Karen Winter - Page 9




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          expenditures.  Sec. 263(a); INDOPCO, Inc. v. Commissioner, supra            
          at 83.                                                                      
               “A particular cost, no matter what its type, may be                    
          deductible in one context but may be required to be capitalized             
          in another context.”  Am. Stores Co. & Subs. v. Commissioner,               
          supra at 469.  An expense that might otherwise qualify as                   
          currently deductible must be capitalized when it:  (1) Creates or           
          enhances a separate and distinct asset; (2) produces a                      
          significant future benefit; or (3) is incurred in connection with           
          the acquisition of a capital asset.  Lychuk v. Commissioner, 116            
          T.C. 374, 385-386 (2001) (and cases cited therein).                         
               Capital expenditures are not limited to the actual price               
          that the buyer pays to the seller for the asset but include the             
          payment of legal, brokerage, accounting, appraisal, and other               
          ancillary expenses related to the asset’s acquisition.  Id. at              
          389.  Whether legal costs are incurred in connection with the               
          acquisition of a capital asset depends on whether the origin of             
          the claim litigated is the process of the acquisition itself.               
          Woodward v. Commissioner, 397 U.S. 572, 577-578 (1970); Berry               
          Petroleum Co. & Subs. v. Commissioner, 104 T.C. 584, 618-619                
          (1995), affd. without published opinion 142 F.3d 442 (9th Cir.              
          1998).  Under the origin of the claim test, the nature of the               
          transaction out of which the expenditure in controversy arose               
          governs whether the item is a deductible expense or a capital               






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