Basin Electric Power Cooperative - Page 34

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               In U.S. Bancorp & Consol. Subs. v. Commissioner, supra at              
          233-234, the taxpayer had a lease for a mainframe computer and              
          paid a fee (rollover fee) in order to cancel that lease and enter           
          into a new lease for a second, more powerful mainframe computer.            
          The Court held that the taxpayer was required to capitalize the             
          rollover fee.  Id. at 239.  In reaching that holding, the Court             
          observed:                                                                   
                    The cases brought to our attention * * * occupy                   
               opposite ends of a spectrum.  At one end is the case                   
               where a lessee pays a lessor to terminate a lease and                  
               no subsequent lease is entered into between the par-                   
               ties.  In such a case the termination fee is clearly                   
               deductible in the year incurred, as there is no second                 
               lease raising the possibility that the lessee will                     
               realize significant future benefits beyond the current                 
               taxable year as a result of the termination payment.                   
               At the opposite end is the case of a lessee that can-                  
               cels a lease and then immediately enters into another                  
               lease with the same lessor, covering the same property.                
               In substance, the first lease is not canceled but                      
               continues in modified form, and any unrecovered costs                  


               22(...continued)                                                       
          expenditures at issue in order to modify and enhance the 1985               
          sale and leaseback agreements, the Commissioner of Internal                 
          Revenue (Commissioner) did not argue in Metrocorp, Inc. v.                  
          Commissioner, 116 T.C. 211 (2001), and T.J. Enters., Inc. v.                
          Commissioner, 101 T.C. 581 (1993), that the costs at issue there            
          modified, enhanced, or created a capital asset.  The Commissioner           
          argued in those two cases only that the costs at issue there                
          created significant future benefits for the taxpayers there                 
          involved.  On the record presented in Metrocorp, Inc. v. Commis-            
          sioner, supra at 222, and T.J. Enters., Inc. v. Commissioner,               
          supra at 592-593, the Court found that there were no significant            
          future benefits requiring capitalization of the costs at issue in           
          those cases.  In the instant case, we have found that petitioner            
          paid the expenditures at issue in order to modify and enhance the           
          1985 sale and leaseback agreements, thereby necessarily providing           
          significant future benefits to petitioner.  See Wells Fargo & Co.           
          and Subs. v. Commissioner, supra at 884.                                    




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