Estate of Burton W. Kanter, Deceased, Joshua S. Kanter, Executor, and Naomi R. Kanter, et al. - Page 342

                                                -401-                                                   
            respondent disallowed, consistent with the Commissioner’s                                   
            position in Estate of Cook v. Commissioner, T.C. Memo. 1993-581.                            
                  In Estate of Cook, this Court sustained the Commissioner’s                            
            determination disallowing the portion of the $980,000 expense                               
            claimed by George Cook as a deduction under section 174(a).  The                            
            parties agreed in the Estate of Cook case that IRC was not                                  
            engaged in a trade or business within the meaning of section                                
            162(a).  The Kanters here do not contend otherwise.  The Kanters                            
            contend, however, as Kanter argued for the taxpayers in the                                 
            Estate of Cook case, that the expense nevertheless qualified as a                           
            deduction under section 174(a) as a research or experimentation                             
            expense.                                                                                    
                  This Court, in the Estate of Cook case, held the expense was                          
            not a research or experimentation expense within the meaning of                             
            section 174(a) based on the premise that, to qualify under                                  
            section 174(a), two requirements must be satisfied:  (1) The                                
            taxpayer must have an objective intent to enter into the trade or                           
            business envisioned by the licensing agreement, and (2) the                                 
            taxpayer must demonstrate the capability to engage in such trade                            
            or business.  The Court went on to conclude that IRC failed to                              
            meet both of these tests.  Of significance to the Court was the                             
            fact that the taxpayers had not established that IRC had obtained                           
            any ownership rights in any technology to be developed by Newport                           
            because Sloan-Kettering was not a party to and had not consented                            




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