Federal Home Loan Mortgage Corporation - Page 28

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          it is, in our view, an asset which is subject to amortization.              
          Permitting amortization deductions on the basis of this                     
          intangible asset does not run afoul of the interest deduction               
          rules of section 163 or the OID rules.  We cannot agree with                
          respondent that petitioner’s claimed amortization deductions are            
          in effect a substitute for interest.                                        
               In support of his argument that petitioner is attempting to            
          circumvent the rules for deducting interest and OID, respondent             
          directs our attention to section 197 where Congress specifically            
          expressed its intent that below-market financing be addressed               
          under present law.  Section 197, which was enacted after the                
          years in issue and does not apply to the years before us,                   
          provides rules for the amortization of certain “amortizable                 
          section 197 intangibles”.15  Under section 197(e)(5)(B), the term           
          “section 197 intangible” does not include any interest under any            

               15Sec. 197 is generally effective with respect to property             
          acquired after Aug. 10, 1993.  Omnibus Budget Reconciliation Act            
          of 1993, Pub. L. 103-66, sec. 13261(g), 107 Stat. 540.  Sec. 197,           
          by reason of its effective date, does not apply to the instant              
          cases.  Under sec. 197(a), a taxpayer is entitled to an                     
          amortization deduction with respect to “any amortizable section             
          197 intangible.”  The deduction under sec. 197 is determined by             
          amortizing the adjusted basis (for purposes of determining gain)            
          of the intangible ratably over a 15-year period beginning with              
          the month in which the intangible was acquired.  Sec. 197(a).  An           
          “amortizable section 197 intangible” is any “section 197                    
          intangible” acquired by a taxpayer after Aug. 10, 1993, and held            
          in connection with the conduct of a trade or business or an                 
          activity described in sec. 212.  Sec. 197(c)(1); Frontier                   
          Chevrolet Co. v. Commissioner, 116 T.C. 289, 292 (2001), affd.              
          329 F.3d 1131 (9th Cir. 2003).                                              





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