Estate of Burton W. Kanter, Deceased, Joshua S. Kanter, Executor, and Naomi R. Kanter, et al. - Page 345

                                                -404-                                                   
            of anything that could be commercially exploited in a trade or                              
            business.”  The Court surmised that virtually anything Newport                              
            developed would constitute a “Patent Right”, and, if so, the                                
            ownership of such improvement or technology would not be owned by                           
            IRC.                                                                                        
                  There were other facts the Court discussed to support the                             
            conclusion IRC was not engaged in a trade or business and did not                           
            have the capability to engage in a trade or business.  These                                
            other findings are not seriously challenged by Kanter in the                                
            instant cases, and the Court does not consider it necessary to                              
            discuss those factors here.                                                                 
                  Kanter was the only witness for petitioners with respect to                           
            this issue.  No documentary evidence was presented to corroborate                           
            Kanter’s testimony.  Kanter’s testimony was directed toward                                 
            establishing that there were certain rights or the ownership of                             
            technology that IRC could acquire from the licensing agreement                              
            with Newport that would not fall within the umbrella of the                                 
            “Patent Rights” exception existing in favor of Sloan-Kettering.                             
                                               OPINION                                                  
            A.  Trade or Business Requirement of Section 174                                            
                  Section 174(a)(1) provides:                                                           
                  A taxpayer may treat research or experimental                                         
                  expenditures which are paid or incurred by him during                                 
                  the taxable year in connection with his trade or                                      
                  business as expenses which are not chargeable to                                      





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