- 26 -
We conclude that none of the internal administrative actions
referred to by petitioners indicate a present intent to permit a
deduction for loan origination/acquisition costs in the year
incurred. Moreover, even if they did, those actions do not
constitute “applicable published guidance” under section
7430(c)(4)(B)(ii), (iv), or “public guidance” under Rauenhorst v.
Commissioner, supra. Therefore, none of those actions is
sufficient to support the conclusion, or even raise a
presumption, that respondent was not substantially justified in
seeking to capitalize ACC’s 1996 through 1998 loan origination/
acquisition costs.
C. Controlling Effect of the Courts of Appeals Decisions in
PNC Bancorp and Wells Fargo
Petitioners argue that, after the decisions in PNC Bancorp,
Inc. v. Commissioner, 212 F.3d 822 (3d Cir. 2000), and Wells
Fargo & Co. and Subs. v. Commissioner, 224 F.3d 874 (8th Cir.
2000), reversing this Court’s capitalization of employee
salaries, respondent was improperly seeking to establish a split
of authority in the U.S. Courts of Appeals by continuing to
litigate the deductibility of the loan origination/acquisition
costs. In support of that argument, petitioners cite section
7430(c)(4)(B)(iii), which requires that we “take into account
whether * * * [respondent] has lost in courts of appeal[s] [sic]
for other circuits on substantially similar issues”. Petitioners
also cite two cases in which the Court of Appeals for the Fifth
Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 NextLast modified: May 25, 2011