Julie A. Toth - Page 7

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          be construed so as not to defeat the intention of another or to             
          frustrate the Act as a whole”); Brons Hotels, Inc. v.                       
          Commissioner, 34 B.T.A. 376, 381 (1936) (“The various sections of           
          the Act should be so construed that one section will explain and            
          support and not defeat or destroy another section”).  Once her              
          section 212 activity has begun, the deduction of ordinary and               
          necessary expenses paid or incurred in that activity is not                 
          precluded by section 195 regardless of whether that activity is             
          subsequently transformed into a trade or business.  This                    
          interpretation is consistent with section 195 and its legislative           
          history.                                                                    
               In the 1980s several Federal Courts of Appeals were asked to           
          decide whether expenses paid or incurred during the preoperating            
          phase of a profit-seeking activity were deductible or had to be             
          capitalized.  Each of the cases involved tax years arising before           
          the effective date of section 195.  Six Courts of Appeals held              
          that, because section 212 and section 162 are in pari materia,              
          preopening expenses7 for either a section 212 activity or a                 

               7 Before the enactment of sec. 195 in the Miscellaneous                
          Revenue Act of 1980, Pub. L. 96-605, sec. 102(a), 94 Stat. 3522,            
          a taxpayer was required to capitalize investigatory expenses and            
          startup costs of a new business under a body of law known as the            
          pre-opening expense doctrine, which was based upon sec. 162 and             
          the clear reflection of income principle.  Richmond Television              
          Corp. v. United States, 345 F.2d 901, 904-907 (4th Cir. 1965),              
          vacated per curiam on other grounds 382 U.S. 68 (1965).  Under              
          this doctrine, a taxpayer could recover preopening expenses only            
          by depreciating them over the life of the asset or deducting them           
                                                             (continued...)           





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