Federal Home Loan Mortgage Corporation - Page 21

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          petitioner for purposes of determining its gain on the sale or              
          other disposition of property held on January 1, 1985.  See DEFRA           
          sec. 177(d)(2)(A)(ii).  In Fed. Home Loan Mortgage Corp. v.                 
          Commissioner, 121 T.C. ___ (2003), we held that since section               
          167(g) requires the use of the basis for determining gain as the            
          basis for amortization of intangible assets and since DEFRA                 
          section 177(d)(2)(A)(ii), 98 Stat. 711, replaced the regular                
          adjusted cost basis rule of section 1011 for purposes of                    
          determining gain, petitioner’s basis for amortizing any                     
          intangibles it held on January 1, 1985, is the higher of the                
          regular adjusted cost basis or fair market value of petitioner’s            
          intangible assets as of that date.  Given this special                      
          circumstance, we do not find the cases involving core deposits              
          distinguishable for the reason that respondent claims.  It                  
          follows from our previous Opinion regarding the application of              
          DEFRA section 177(d)(2)(A)(ii) that petitioner’s failure to                 
          establish a “cost basis” does not prevent it from claiming a                
          higher fair market value basis in its favorable financing.  Thus,           
          we do not believe an acquisition or an allocable cost is                    
          essential to petitioner’s claim that it held an asset of value in           
          the form of its favorable financing as of January 1, 1985.10                


               10Further, although relevant to the general question whether           
          a taxpayer has an adjusted cost basis in an asset upon which                
          amortization deductions can be based, adjusted cost basis is not            
          determinative of whether there is in fact an intangible asset.              
          See, e.g., Bartolme v. Commissioner, 62 T.C. 821, 830 (1974).               




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