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incurred on or after the date the final regulations are published
in the Federal Register.” Sec. 1.263(a)-4(o), Proposed Income
Tax Regs., 67 Fed. Reg. 77723 (Dec. 19, 2002).
Internal IRS Developments
The motions also reference a number of internal IRS
documents released by respondent to petitioners in connection
with July 1, 2002, Freedom of Information Act (FOIA) requests
made by petitioners’ counsel. One of those documents is entitled
“Case History Report Form, Internal Revenue Service – Office of
Chief Counsel”; it further states: “Case name: Capitalization of
Self-Created Intangibles Regulation” (case history report form).
It traces the Chief Counsel’s and Treasury Department’s actions
that resulted in the issuance of the proposed INDOPCO
regulations. It reflects that, on May 7, 2001, Chief Counsel and
Treasury Department officials met to discuss the scope of a
proposed regulations project regarding capitalization of self-
created intangibles and that, throughout the balance of 1991 and
into January 1992, when the ANPRM was issued, there were numerous
Chief Counsel – Treasury Department discussions. At first, when
the discussions began on August 1, 2001, they were with regard to
the issuance of “a moratorium on capitalization of intangibles in
examinations pending issuance of regulations”. Beginning on
January 10, 2002 (when “Treasury, the Chief Counsel, and
Commissioner (LMSB) decided that guidance should take the form of
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