- 36 - & Consol. Subs. v. Commissioner, supra at 240-241. If the rollover fee in U.S. Bancorp & Consol. Subs. paid or incurred to cancel the original lease covering certain property and to enter into a new lease covering different property must be capitalized, a fortiori fees or costs paid or incurred to modify an existing lease covering the same property, like the expenditures at issue here, must be capitalized. See id.; Pig & Whistle Co. v. Commis- sioner, supra; Phil Gluckstern’s, Inc. v. Commissioner, supra. On the record before us, we hold that petitioner must capitalize the expenditures at issue.23 23In a footnote in petitioner’s opening brief, petitioner advances for the first time the following alternative argument: the lessor’s expenses paid by Basin Electric [peti- tioner] and recouped through the special allocation of the interest savings could be viewed as a “loan” from Basin Electric to lessors and a repayment of such loans through reduced rent in 1995 and 1996. * * * Under such a characterization, Basin Electric would be entitled to deduct the unreduced rent for 1995 and 1996 (effec- tively allowing Basin Electric to amortize the costs over that period). It is well settled that the Court will not consider issues raised for the first time on brief when to do so would prevent the opposing party from presenting evidence that that party might have proffered if the issue had been timely raised. DiLeo v. Commissioner, 96 T.C. 858, 891 (1991), affd. 959 F.2d 16 (2d Cir. 1992); Shelby U.S. Distribs., Inc. v. Commissioner, 71 T.C. 874, 885 (1979). The determination of whether a debtor-creditor relationship exists is a highly fact-specific inquiry. See, e.g., Ga.-Pac. Corp. v. Commissioner, 63 T.C. 790, 796 (1975). We conclude that it would be prejudicial to respondent to con- sider petitioner's alternative argument that certain of the expenditures at issue constituted a loan from petitioner to the owner participants. That is because respondent had no opportu- (continued...)Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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