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otherwise deductible under that rule (in this case, the
professional fees) after the issuance of that decision on
November 6, 2001. U.S. Freightways Corp. is inconsistent with
the decision of this Court, which it reversed, and with the
decisions of other U.S. Courts of Appeals, which have held or
suggested that expenses that give rise to property with a life
extending beyond the taxable year in which the expense is
incurred must be capitalized. See, e.g., Jack’s Cookie Co. v.
United States, 597 F.2d 395, 402 (4th Cir. 1979); Am. Dispenser
Co. v. Commissioner, 396 F.2d 137, 138 (2d Cir. 1968), affg. T.C.
Memo. 1967-153; Sears Oil Co. v. Commissioner, 359 F.2d 191, 197
(2d Cir. 1966), affg. in part, revg. in part, and remanding T.C.
Memo. 1965-39; Commissioner v. Boylston Mkt. Association, 131
F.2d 966, 968 (1st Cir. 1942), affg. a Memorandum Opinion of the
Board of Tax Appeals. Those cases provide substantial
justification for respondent’s attempt to capitalize the
professional fees, despite the decision of the Court of Appeals
in U.S. Freightways Corp.
E. Timeliness of Respondent’s Concessions
Respondent’s initial published guidance that he would no
longer contest or litigate the deductibility of employee
compensation (here, the loan origination/acquisition costs)
appeared on March 15, 2002, with the issuance of CCN 2002-21, and
his initial published guidance adopting the 12-month rule
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