James E. Blasius and Mary Jo Blasius, et al. - Page 26

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               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             





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