Capital Blue Cross and Subsidiaries - Page 26

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          emphasizing the importance of the taxpayer’s evidentiary basis to           
          support tax deductions relating to customer-based intangible                
          assets (even though some of the referenced opinions allowed the             
          deductions in dispute as did the Supreme Court in Newark Morning            
          Ledger Co.).  We quote below these additional statements from the           
          Supreme Court’s opinion in Newark Morning Ledger Co.:                       

               (1) “The courts that have found these assets depreciable               
               have based their conclusions on carefully developed factual            
               records.”  * * *  [Id. at 560];                                        
               (2) “The * * * [Court of Claims in Richard S. Miller & Sons,           
               Inc. v. United States, 210 Ct.Cl. 431, 537 F.2d 446 (1976)]            
               concluded that the taxpayer had carried its heavy burden of            
               proving that the expirations had an ascertainable value                
               separate and distinct from goodwill and had a limited useful           
               life * * *.”  [Id. at 560];                                            
               (3) “The Tax Court [in Citizens & S. Corp. v. Commissioner,            
               91 T.C. 463 (1988), affd. 919 F.2d 1492 (11th Cir. 1990)]              
               rejected the Commissioner’s position, concluding that the              
               taxpayer had demonstrated with sufficient evidence that the            
               economic value attributable to the opportunity to invest the           
               core deposits could be (and, indeed, was) valued * * *.”               
               [Id. at 562];                                                          
               (4) “The * * * [Tax Court in Co. Natl. Bankshares v.                   
               Commissioner, T.C. Memo. 1990-495, affd. 984 F.2d 383 (10th            
               Cir. 1993)] specifically found that the deposit accounts               
               could be identified; that they had limited lives that could            
               be estimated with reasonable accuracy; and that they could             
               be valued with a fair degree of accuracy.”  * * *  [Id. at             
               563];                                                                  
               (5) “The Court of Appeals [in Newark Morning Ledger Co. v.             
               United States, 945 F.2d 555 (3d Cir. 1991), revd. 507 U.S.             
               546 (1993)] concluded further that in ‘the context of the              
               sale of a going concern, it is simply often too difficult              
               for the taxpayer and the court to separate the value of the            
               list qua list from the goodwill value of the customer                  
               relationships/structure.’  [Id. at 568.]  We agree with that           
               general observation.  It is often too difficult for                    
               taxpayers to separate depreciable intangible assets from               
               goodwill.  But sometimes they manage to do it.  And whether            






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