Basin Electric Power Cooperative - Page 36

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          & 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...)           




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