James E. Blasius and Mary Jo Blasius, et al. - Page 38

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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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