Estate of Burton W. Kanter, Deceased, Joshua S. Kanter, Executor, and Naomi R. Kanter, et al. - Page 356

                                                -414-                                                   
                  Indeed, in his testimony, Kanter could not elaborate or                               
            describe what realistic prospects IRC would have of exploiting                              
            commercially the technology being developed.  In view of the                                
            broad scope of the existing and potential patent rights Newport                             
            and Sloan-Kettering held, it is difficult to believe that a third                           
            party, such as a major pharmaceutical company, would want to                                
            license from IRC the know-how on NPT-15392 to further develop                               
            that technology.                                                                            
                  On the basis of the foregoing, the Court holds the Kanters                            
            are not entitled to a deduction under section 174 for 1979 with                             
            respect to IRC’s claimed research and development expense.  See                             
            Spellman v. Commissioner, 845 F.2d 148 (7th Cir. 1988), affg.                               
            T.C. Memo. 1986-403; Diamond v. Commissioner, 92 T.C. 423 (1989),                           


                  159(...continued)                                                                     
            would likely exercise if the research turned sour, or the “call”                            
            agreement that allowed Newport to buy the IRC stock, which likely                           
            would occur if the development of the technology proved to be                               
            successful.  The Court also noted that all of the Schedules 10-K                            
            filed by Newport with the Securities and Exchange Commission,                               
            pursuant to sec. 13 or 15(d) of the Securities Exchange Act of                              
            1934, as amended, described the research agreement, as entered                              
            into with IRC, as being more in the nature of an investment than                            
            a licensing of the technology.  The Court further noted that,                               
            even if IRC acquired the technology from Newport, there was no                              
            showing that IRC had the resources to devote to the exploitation                            
            of the technology, nor was there any obligation on the part of                              
            IRC to compel or require capital contributions from its                                     
            stockholders.  The Court concluded the investments in IRC were                              
            nothing more than an investment in Newport that was structured to                           
            allow the investors in IRC a deduction for their $980,000                                   
            investment through purported research and experimental deductions                           
            that would not have been available had the investment been made                             
            directly in Newport.                                                                        




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