Tyson Foods, Inc. and Subsidiaries - Page 5




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          at the end of the fiscal years 1995 and 1996.  The only records             
          explaining the amounts that were debited to the moving expense              
          account are lists showing a breakdown by vendor or other brief              
          description, but not identifying the nature of the item or the              
          dates that the credited amounts were expended.                              
               Respondent has conceded that petitioner’s income should be             
          reduced by $1,800,354 of the misapplied $5 million subsidy.                 
          Petitioner contends that it is entitled to deduct an additional             
          $2,007,640.  Petitioner concedes that it is not entitled to                 
          reduce its income by the balance of $1,192,006.                             
                                       OPINION                                        
               In its opening brief on this issue, petitioner’s position is           
          concisely stated as follows:                                                
                    Petitioner’s records are insufficient to determine                
               the extent to which these expenses should have resulted                
               in a reduction of otherwise allowable ordinary and                     
               necessary business expenses as contrasted with the                     
               reduction of otherwise allowable depreciation.                         
               However, at a minimum, under the well-established Cohan                
               rule (Cohan v. Commissioner, 39 F.2d 540 (2d Cir.                      
               1930)), petitioner is entitled to treat the entire                     
               $2,007,640 as a capital expenditure depreciable over a                 
               five-year time period and to reduce its taxable income                 
               accordingly for the resulting additional depreciation                  
               deductions.                                                            
          Respondent replies:                                                         
                    * * * [Petitioner’s] assertion that * * * [it] is                 
               at least entitled to capitalize the remaining amounts                  
               in dispute without any documentation, is to simply                     
               ignore the well known legal principle that deductions                  
               are a matter of legislative grace, and the taxpayer                    
               must clearly demonstrate entitlement to any deductions                 







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