Metrocorp, Inc. v. Commissioner , 116 T.C. 211 ( 2001 )

Beghe, J.,

dissenting: The stipulated facts establish that Metrobank paid the exit and entrance fees to acquire selected assets and deposits of Community. At least some of the acquired assets were capital, because Metrobank could expect to receive significant long-term benefits from them. See Citizens & S. Corp. v. Commissioner, 91 T.C. 463 (1988) (bank’s acquisition of “core deposits” from another institution gave rise to amortizable intangible asset), affd. without published opinion 900 F.2d 266 (11th Cir. 1990). Because the exit and entrance fees were paid to acquire capital assets, they must be capitalized. See INDOPCO, Inc. v. Commissioner, 503 U.S. 79 (1992); Commissioner v. Idaho Power Co., 418 U.S. 1, 13 (1974) (costs paid “in connection with” construction or acquisition of capital assets must be capitalized); Woodward v. Commissioner, 397 U.S. 572 (1970) (expenses incurred in connection with litigation originating in the acquisition or disposition of capital assets must be capitalized, regardless of payor’s subjective motive); A.E. Staley Manufacturing Co. & Subs. v. Commissioner, 119 F.3d 482, 488 (7th Cir. 1997) (describing Supreme Court’s INDOPCO decision as “merely reaffirming settled law that costs incurred to facilitate a capital transaction are capital costs”), revg. 105 T.C. 166 (1995); sec. 1.263(a)-2(a), Income Tax Regs, (cost of acquisition of property having useful life substantially beyond the taxable year is a capital expenditure).

The majority advance three arguments for avoiding this seemingly inescapable conclusion. First, the majority claim that respondent “did not determine, and has declined to argue” that the fees should be capitalized on the ground that they were incurred in connection with the acquisition of capital assets. Majority op. p. 217. Second, the majority assert that the fees were paid to an insurer (the FDIC) in order to protect the “integrity” of the insurer’s reserves. Majority op. pp. 221-223. Third, the majority claim that the fees were deductible “cost-saving expenditures”. Majority op. pp. 224-225. None of these arguments holds water.

Costs Incurred in Connection With Asset Acquisitions Are Capital

Even normally deductible costs must be capitalized if they are sufficiently related to the acquisition of a capital asset (or to some other capital transaction). As the Supreme Court stated in Commissioner v. Idaho Power Co., supra at 13:

Of course, reasonable wages paid in the carrying on of a trade or business qualify as a deduction from gross income. * * * But when wages are paid in connection with the construction or acquisition of a capital asset, they must be capitalized and are then entitled to be amortized over the life of the capital asset so acquired.

This Court has recently cited Idaho Power Co. to support the holding that legal fees, like other expenditures that ordinarily might qualify as currently deductible, must be capitalized if they are incurred “in connection with” the acquisition of a capital asset. See American Stores Co. & Subs. v. Commissioner, 114 T.C. 458, 469 (2000). But see Wells Fargo & Co. & Subs. v. Commissioner, 224 F.3d 874, 885-888 (8th Cir. 2000) (distinguishing expenditures directly related to capital transactions from expenditures indirectly related to such transactions), affg. in part and revg. in part Norwest Corp. & Subs. v. Commissioner, 112 T.C. 89 (1999).

Respondent Sufficiently Raised Asset Acquisition Issue

According to the majority, respondent failed to argue that the exit and entrance fees were connected with Metrobank’s asset acquisition; we should therefore defer consideration of this “theory” to another day. Majority op. p. 217. I disagree.

Although respondent didn’t specifically argue that the fees were paid to acquire Community’s assets and deposits, respondent did argue that the fees created significant long-term benefits for Metrobank. The presence of significant long-term benefits is relevant to the case at hand because it serves to distinguish payments that result in the acquisition of capital assets from those that don’t. See sec. 263 (cost of “permanent improvements or betterments” must be capitalized); INDOPCO, Inc. v. Commissioner, supra at 87-88 (long-term benefit is an undeniably important and prominent, if not predominant, characteristic of a capital asset within the meaning of section 263, in part citing Central Tex. Sav. & Loan Association v. United States, 731 F.2d 1181, 1183 (5th Cir. 1984)); Wells Fargo & Co. & Subs. v. Commissioner, supra at 883-884 (a separate and distinct capital asset always provides long-term benefits). Therefore, respondent’s broader assertion of long-term benefits necessarily included the narrower assertion that the fees were part of Metrobank’s cost of acquiring capital assets.¹

More importantly, the stipulated record establishes that the fees were paid in connection with Metrobank’s asset acquisition. We should therefore consider the factual, causal, and legal consequences of that relationship, even if respondent didn’t expressly raise it as an issue, and even though the case at hand was submitted fully stipulated under Rule 122. In Ware v. Commissioner, 92 T.C. 1267 (1989), the taxpayer asserted that we should reconsider a case submitted under Rule 122 because the Commissioner allegedly had relied on a theory raised for the first time on brief. We denied the taxpayer’s motion, and noted that under appropriate circumstances we can rest our decision for the Commissioner on reasons neither set forth in the notice of deficiency nor relied upon by the Commissioner. See Ware v. Commissioner, supra at 1269, and cases cited therein; Bair v. Commissioner, 16 T.C. 90, 98 (1951) (Tax Court reviews a deficiency, not the Commissioner’s reasons for determining it), affd. 199 F.2d 589 (2d Cir. 1952); Standard Oil Co. v. Commissioner, 43 B.T.A. 973, 998 (1941) (reasons and theories stated in statutory notice, even if erroneous, do not restrict the Commissioner in presenting case before the Court), affd. 129 F.2d 363 (7th Cir. 1942); cf. sec. 7522.

Our Consideration of Asset Acquisition Issue Would Not Prejudice Petitioner

Although respondent’s actions don’t limit our ability to consider the relationship between fees paid and assets acquired, the majority suggest we should close our eyes to that relationship “In order to avoid prejudicing petitioner”. Majority op. p. 217. According to the majority, if respondent had stressed that relationship, “petitioner might well have wanted to offer evidence relating to it.” Id.

I agree that the appropriate question is whether respondent’s conduct has limited or precluded petitioner’s opportunity to present pertinent evidence. See Ware v. Commissioner, supra at 1268-1269; Pagel, Inc. v. Commissioner, 91 T.C. 200, 211-213 (1988), affd. 905 F.2d 1190 (8th Cir. 1990). However, I disagree that there could be any prejudice in the case at hand. The stipulated facts clearly establish that Metrobank paid the fees in order to acquire the assets and deposits it wanted to acquire. Indeed, payment of the fees was legally required, if Metrobank was to consummate the acquisition in the form it desired; Metrobank accordingly agreed in its bid to pay the fees to the FDIC. See majority op. p. 214. The record thus establishes that the fees were part of Metrobank’s cost of acquisition; I can’t imagine any evidence petitioner could have presented to support a contrary conclusion.² See Ware v. Commissioner, supra; Pagel, Inc. v. Commissioner, supra.

The majority assert that considering the relationship between fees paid and assets acquired requires us to “second guess” petitioner’s business judgment. See majority op. pp. 223-224. To the contrary, I accept that judgment; the payment of the fees was a necessary element of the transaction that petitioner, in its best business judgment, actually decided to achieve.³

I also disagree with the majority’s suggestion that our reliance on Metrobank’s asset acquisition would unfairly surprise petitioner. Petitioner was aware that respondent would rely on two cases referred to by the majority (see majority op. p. 225 note 10): Darlington-Hartsville Coca-Cola Bottling Co. v. United States, 273 F. Supp. 229 (D.S.C. 1967), affd. 393 F.2d 494 (4th Cir. 1968), and Rodeway Inns of Am. v. Commissioner, 63 T.C. 414 (1974).⁴ The majority try to distinguish these cases on the ground that the taxpayer in each “purchased a capital asset incident to the payment of the expenses in dispute”. Majority op. p. 225 note 10. Assuming the majority are correct, respondent’s reliance on these cases put petitioner on notice of the importance of the connection between the payment of the fees and Metrobank’s asset acquisition.

There’s other evidence of petitioner’s awareness of the importance of that connection. In its brief, petitioner argued in the alternative that, if the fees were capitalized, they should be amortized over the life of the “core deposits” acquired from Community. See Brief for Petitioner at 24-25.⁵ Finally, respondent’s long-term benefit argument sufficiently raised the issue whether the fees were part of the cost of acquiring capital assets, as I explained supra pp. 249-250.

Treating the Fees as Insurance Premiums Is Also Insufficient

Even if I accepted the majority’s invitation to defer consideration of the asset acquisition “theory” to another day, I would still conclude that the fees must be capitalized. The majority assert that deduction is proper because any long-term benefit to Metrobank “is insignificant when weighed against the primary purpose for the payment of the fees.” Majority op. p. 222. According to the majority, that primary purpose was to “protect the integrity” of the SAIF and the bif. Id. The majority additionally assert that “Metrobank paid the exit fee to the SAIF as a nonrefundable, final premium for insurance that it had already received”, while the entrance fee was a nonrefundable premium “for the current year’s insurance.” Majority op. p. 223. Once again, I disagree.

The majority’s conclusion that Metrobank paid the exit fee for insurance it had already received is clearly wrong. As the majority opinion clearly states, the exit fee was paid to the SAIF. See id. The deposits of Community acquired by Metrobank were insured by the SAIF only when they were Community’s deposits; those deposits became insured by the BIF upon their acquisition by Metrobank.

Therefore, if the exit fees accurately can be described as premiums for SAIF insurance, they were for insurance coverage the deposits received before Metrobank acquired them. The only business purpose Metrobank could have had for paying this “SAIF insurance expense” was its desire to acquire Community’s assets and deposits.

The majority’s reliance on the role the fees played in protecting the “integrity” of the SAIF is misplaced. While it may have been the FDic’s purpose in imposing the exit fees, it certainly wasn’t Metrobank’s reason for paying them. Moreover, the FDic’s purpose is of limited relevance to the case at hand. See Commissioner v. Lincoln Sav. & Loan Association, 403 U.S. 345, 354 (1971) (“It is not enough, in order that an expenditure qualify as an income tax deduction * * * that it serves to fortify FSLic’s [the predecessor of SAIF] insurance purpose and operation”).

What all this means is that, even if the majority’s characterization of the fees as insurance premiums is correct, the fees nevertheless must be capitalized. As I’ve already explained, ordinarily deductible expenditures must be capitalized when they are incurred in connection with the acquisition of a capital asset. More generally, however, insurance premiums that give rise to benefits extending beyond the end of the taxable year must be capitalized, even if they are not connected with the acquisition of a capital asset. See Lincoln Sav. & Loan Association v. Commissioner, 51 T.C. 82, 94 (1968) (citing “long line of decisions by this Court holding that prepaid insurance premiums are capital expenditures to be expensed over the years in which coverage is actually obtained”), revd. 422 F.2d 90 (9th Cir. 1970), revd. 403 U.S. 345 (1971); sec. 1.461-4(g)(8) Example (6), Income Tax Regs, (where taxpayer pays premium in 1993 for insurance contract covering claims made through 1997, period for which premium is permitted to be taken into account is determined under the capitalization rules, because the contract is an asset having a useful life extending substantially beyond the close of the taxable year).

The entrance and exit fees were in addition to the semiannual premiums Metrobank paid to the.BiF to insure the acquired deposits after the acquisition. The fees were also several times greater than the semiannual premiums, as a percentage of the acquired deposits. See majority op. pp. 214-215, 223-224.⁶ The exit and entrance fees therefore resemble premium prepayments, which entitled Metrobank to insure the acquired deposits with the bif in future years. This would support capitalizing the exit and entrance fees, even if they had no connection with the acquisition of a separate asset. See Herman v. Commissioner, 84 T.C. 120 (1985) (one-time purchase of subordinated loan certificate, which entitled physician, upon payment of annual premiums, to malpractice insurance coverage, held capital investment; Commissioner conceded deductibility of annual premiums).

The Cost Savings Argument Is Not Persuasive

The majority’s final argument for deductibility is that cost savings expenditures, such as payments to escape from burdensome or onerous contracts, are generally deductible. See majority op. pp. 224-225. This principle may have been limited by the Supreme Court’s opinion in INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 88-89 (1992) (identifying benefits of transformation from public to private company, such as avoidance of shareholder-relations expenses and administrative advantages of reducing the number of classes and shares of outstanding stock). Moreover, the majority’s cost reduction analysis is defective; the case relied upon by the majority, T.J. Enters., Inc. v. Commissioner, 101 T.C. 581 (1993), is distinguishable. The payments in that case were made each year to reduce costs that otherwise would have been payable during each such year; the Court also noted that no separate and distinct additional asset was acquired by virtue of the payments sought to be deducted. See T.J. Enters., Inc. v. Commissioner, supra at 589 n.8, 592-593. By contrast, the fees in the case at hand entitled Metrobank to insure the acquired deposits with the BIF for many years to come (and, as noted above, the fees were connected with the acquisition itself).

Finally, we have held that a payment to terminate a burdensome contract may be capitalized if the payment is also integrally related to the acquisition of a new long-term contract with significant future benefits. See U.S. Bancorp & Consol. Subs. v. Commissioner, 111 T.C. 231 (1998). Even if one were to agree with the majority that the entrance and exit fees were paid in order to terminate burdensome insurance premium obligations, the entrance and exit fees would still fall within the rubric of long-term benefits.

For all the foregoing reasons, I respectfully dissent.

Ruwe, Whalen, and Gale, JJ., agree with this dissenting opinion.

1 See majority op. pp. 221-222, which states that “Expenses must generally be capitalized when they either: (1) Create or enhance a separate and distinct asset or (2) otherwise generate significant [long-term] benefits”. (Emphasis added.)

2 By contrast, in the cases relied upon by the majority, it was clearly possible that the taxpayers could have offered relevant evidence to support their position, or the Court believed that the record did not permit it to decide the issue. See Concord Consumers Housing Coop. v. Commissioner, 89 T.C. 105, 106-107 n.3 (1987) (Court did not consider whether taxpayer was sec. 216 cooperative housing corporation because neither party addressed the issue and Court could not tell from the record); Leahy v. Commissioner, 87 T.C. 56, 64-65 (1986) (Commissioner originally contended that partnership was not entitled to investment tax credit on ground that partnership was not owner of the property; later ground was alleged failure to attach statement to return, as required by regulations).

3 It appears that the only way Metrobank could have acquired assets and deposits from Community without paying exit and entrance fees would have been to acquire control of Community and then merge or consolidate with it. See majority op. p. 220; Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. L. 101-73, sec. 206(a)(7), 103 Stat. 183, 195, currently codified at 12 U.S.C. sec. 1815(d)(3)(A) (Supp. V, 1999)). Of course, this is not what Metrobank did. Moreover, such a transaction might have required Metrobank to acquire all assets (and assume all liabilities, including unknown and contingent liabilities) of Community, rather than a portion of them.

4 See Brief for Petitioner at 22 (briefs were simultaneous), which states: “The Respondent has cited Darlington-Hartsville Coca-Cola Bottling Co. v. United States, 393 F.2d 494 (4th Cir. 1968) and Rodeway Inns of America v. Commissioner, 63 T.C. 414 (1974) as support for Respondent’s argument that the exit and entrance fees were paid as part of a plan to produce a positive business benefit for future years.”

5 There is no occasion in the case at hand to consider petitioner’s alternative argument that, if the fees are capitalizable, petitioner is entitled to amortize them over a 10-year period; there is no evidence of useful life in the stipulated record. It does seem to me that amortization should probably be allowed over such useful life of the core deposits acquired as could be shown. See Citizens & S. Corp. v. Commissioner, 91 T.C. 463 (1988), affd. without published opinion 900 F.2d 266 (11th Cir. 1990); see also First Chicago Corp. v. Commissioner, T.C. Memo. 1994-300; Trustmark Corp. v. Commissioner, T.C. Memo. 1994-184. Compare Field Serv. Adv. Mem. 2000-08-005 (Feb. 25, 2000), where, in a transaction similar to the case at hand, the taxpayer amortized the entrance and exit fees over a 10-year period for financial statement purposes.

6 The third of the emphasized points in Judge Swift’s concurrence (Swift, J., concurring op. pp. 229-230) compares the entrance and exit fees paid by Metrocorp to acquire the deposits of Community with the regular semiannual premiums paid by Metrocorp on its total deposits, including both its own deposits and the deposits of Community that it acquired. Obviously, the ratio of the entrance and exit fees to the regular semiannual premiums would be much higher if the regular premiums paid by Metroeorp on its own deposits were removed from consideration. They should be so removed if the much more meaningful comparison of the entrance and exit fees with the regular premiums on the acquired deposits is to be made.