James E. Blasius and Mary Jo Blasius, et al. - Page 30

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          our decision in Lychuk) in litigating the deductibility of the              
          loan origination/acquisition costs.  Therefore, those cases do              
          not require us to decide that respondent was not substantially              
          justified in seeking to capitalize those costs.                             
               D.  Controlling Effect of Rev. Rul. 99-23, the ANPRM,                  
               Announcement 2002-9, and U.S. Freightways Corp.                        
                    1.  Rev. Rul. 99-23                                               
               Petitioners argue that respondent’s issuance of Rev. Rul.              
          99-23, 1999-1 C.B. 998, and his concession based on that ruling             
          in Wells Fargo & Co. and Subs. v. Commissioner, supra, of the               
          deductibility of the costs attributable to the “investigatory               
          stage” of the transaction results in a presumption under section            
          7430(c)(4)(B)(ii) of no substantial justification for                       
          respondent’s litigating position with respect to the loan                   
          origination/acquisition costs.                                              
               As noted supra note 11, Rev. Rul. 99-23, 1999-1 C.B. at                
          1000, classifies as an expense eligible for amortization as a               
          startup expenditure under section 195 (and, in the context of a             
          business expansion, as a deductible expense) “investigatory                 
          costs” that are “paid or incurred in order to determine whether             
          to enter a new business and which new business to enter”.                   
          Although there is an undeniable similarity between the                      
          “investigatory costs” described in Rev. Rul. 99-23, supra, as               
          eligible for amortization under section 195 and the credit                  
          analysis activities performed by ACC’s employees preparatory to             





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