U.S. Bancorp and Its Consolidated Subsidiaries v. Commissioner

111 T.C. No. 10UNITED STATES TAX COURT
U.S. BANCORP AND ITS CONSOLIDATED SUBSIDIARIES,
Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 27342-96.1 Filed September 21, 1998.
P, a bank holding company, leased a mainframe
computer from ICC, a finance corporation, for a 5-year
term. Less than 1 year later, P decided that the
computer was no longer adequate for its needs. P
thereupon entered into a “rollover agreement” with ICC,
whereby the lease was terminated upon the condition,
among other things, that P commit to finance the
1
On Nov. 18, 1997, the Court granted petitioner's motion to
consolidate this case for trial, briefing, and opinion with the
case at docket No. 6544-97. The issue herein is not related to
the issues in docket No. 6544-97 and does not involve the tax
years at issue in docket No. 6544-97. Therefore, the Court, by
order dated Sept. 15, 1998, denied petitioner’s motion for
partial summary judgment and respondent’s cross-motion for
partial summary judgment on the IBM lease issue in the case at
docket No. 6544-97. The order pursuant to this opinion will be
issued only in docket No. 27342-96.
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replacement equipment with ICC. The rollover agreement
provided for a $2.5 million rollover charge to be paid
by P. Shortly thereafter, pursuant to the rollover
agreement, P leased a more powerful mainframe computer
from ICC for a 5-year term. ICC financed P's
obligation to pay the $2.5 million rollover charge over
the 5-year term of the second lease.
Held: The $2.5 million rollover charge P incurred
is not currently deductible in the year of termination
of the first lease but must be capitalized and
amortized over the 5-year term of the second lease.
Richard A. Edwards and David W. Brown, for petitioner.
William P. Boulet, Jr. and Virginia L. Hamilton, for
respondent.
OPINION
BEGHE, Judge: This matter is before the Court on the
parties' motions for partial summary judgment filed under Rule
121.2 Petitioner's principal office was located in Portland,
Oregon, when it filed the petition.
The sole issue for decision is whether the charge incurred
by a lessee in terminating a lease of a mainframe computer and
simultaneously initiating a new lease of a more powerful
mainframe computer with the same lessor is deductible in the year
incurred or must be capitalized and amortized over the 5-year
2
All Rule references are to the Tax Court Rules of Practice
and Procedure. All section references are to the Internal
Revenue Code in effect for the years at issue.
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term of the new lease. We hold that the charge must be
capitalized and amortized over the term of the new lease.
The background facts set forth below are derived from the
pleadings in this case, petitioner's request for admissions,
respondent's responses to petitioner's request, affidavits and
exhibits attached to petitioner's motion for partial summary
judgment, respondent’s cross-motion for partial summary judgment,
the declaration and exhibits attached to respondent's response to
petitioner's motion, the exhibits attached to petitioner's reply
to respondent's response, and the exhibits and affidavits
attached to petitioner's first and second supplemental replies to
respondent's response. The background facts do not appear to be
in dispute and are set forth solely for purposes of deciding the
motions and are not findings of fact for this case. Fed. R. Civ.
P. 52(a); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
(1992), affd. 17 F.3d 965 (7th Cir. 1994).
Background
Petitioner is a successor in interest by merger of West One
Bancorp. Moore Financial Group, Inc. (Moore Financial), was a
national bank holding company incorporated in the State of Idaho
in 1981. In 1989, Moore Financial changed its name to West One
Bancorp (West One). In 1995, West One merged into U.S. Bancorp
(Old Bancorp), a bank holding company incorporated in the State
of Oregon. In 1997, Old Bancorp merged into First Bank System,
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Inc., a bank holding company incorporated in the State of
Delaware, which then changed its name to U.S. Bancorp
(petitioner). West One was a calendar year taxpayer that used
the accrual method of accounting for 1989 and 1990, the tax years
in issue.
The leases at issue in this case were between West One as
lessee and IBM Credit Corp. (ICC) as lessor. For purposes of
leasing computer equipment, ICC uses a document captioned "Term
Lease Master Agreement" (the Master Agreement), which contains an
umbrella set of terms. Customers of ICC sign the Master
Agreement, whose terms then govern all future lease transactions
between ICC and the customer. When a customer enters into an
individual lease transaction, it signs a document captioned "Term
Lease Supplement" (Supplement), which expressly incorporates the
terms of the Master Agreement and contains a description of the
leased equipment, price terms, financing arrangements, and other
factors unique to the transaction. The Master Agreement
explicitly provides that the lease cannot be canceled and does
not provide for a specific charge in case of early termination of
the lease or for a formula for computing any such charge.
West One, at the time still named Moore Financial, executed
the Master Agreement with ICC in March 1989. In August 1989,
West One leased an IBM 3090 mainframe computer (the 3090) from
ICC (the First Lease). The lease term commenced August 30, 1989,
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and was to end on June 28, 1994, and called for monthly payments
of $128,701. The Supplement for the First Lease has not been
provided to the Court.
During 1990, West One determined that the 3090 was no longer
adequate for its needs and that an upgrade to a more powerful
mainframe computer would be required. Accordingly, in October
1990, West One and ICC executed a document captioned the
"Rollover Agreement" (the Agreement). Under the Agreement, ICC
released West One from its obligations under the First Lease on
several conditions, including that West One finance its
replacement computer equipment with ICC (“Lessee commits to
finance the replacement Equipment with IBM Credit Corporation”).
Under the Agreement, the termination of the First Lease took
effect on November 15, 1990, at which time the payments yet to be
made under the First Lease in accordance with its terms would
have amounted to approximately $5,662,844. However, the
Agreement required West One to pay a "Rollover Charge" of $2.5
million, which was financed by ICC over the 5-year period of the
new lease (discussed in the next paragraph). The Agreement
concludes with the following statement:
This Agreement is valid when accepted by both
parties and payment in full (Rollover charge plus all
lease payments due through the Rollover Date) or a
signed Term Lease Supplement financing the Rollover
charge is received by Lessor on or before November 15,
1990. This supercedes [sic] any prior Rollover quote
for this equipment.
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On October 31, 1990, West One executed a lease with ICC for
an IBM 580 mainframe computer (the 580) for a 5-year term (the
Second Lease). Under the Second Lease, West One was required to
make 60 monthly payments, each in the total amount of $182,484,
consisting of $128,709 for the Second Lease and $53,775 for the
rollover charge. The form of Supplement used by ICC refers, as
does the Supplement for the Second Lease, to the charge for
canceling an old lease as a rollover charge that is to be billed
monthly along with the lease payments under the Second Lease.
Under the description of the equipment to be leased, the
Supplement for the Second Lease provides: "Option S financing
for ICC lease termination of the 3090/74299 complex is contingent
upon ICC financing of the 9021/580. If the 9021/580 is not
financed via ICC, the ICC lease termination charges for the 3090
complex will be due under quote #E320999A" (the document
containing this alternative quote has not been located).
Although ICC does not have a fixed formula for calculating a
termination charge and takes a number of factors into account in
determining its negotiating position with the terminating lessee,
the termination charge is generally less if the lessee agrees to
obtain financing from ICC for replacement equipment.3
3
The consistent terminology of the Agreement and the
Supplement lead us to conclude that the references therein to
financing the replacement equipment include entry into a lease
therefor.
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Although the Supplement does not expressly so state, it
implies, consistently with the concluding paragraph of the
Rollover Agreement, that if the replacement equipment had not
been financed through ICC, whatever termination charge the
parties had agreed upon would have been immediately due and
payable.
On its 1990 Federal consolidated income tax return,
petitioner claimed a deduction of $793,753 as an expense of
terminating the First Lease. In the statutory notice of
deficiency issued to petitioner on September 20, 1996, respondent
disallowed the deduction and increased petitioner's income for
the 1990 taxable year by $793,753. The explanation of
adjustments section of the notice stated that the termination
charge was a capital expenditure under section 263 because
petitioner entered into a lease with ICC for replacement
equipment, and that, because no payments under the new lease were
made until 1991, no amortization deduction would be allowed for
1990.
In the petition filed December 24, 1996, petitioner alleged
that respondent erred in determining that the termination charge
was a capital expenditure and not an ordinary and necessary
business expense within the meaning of section 162. On
December 15, 1997, petitioner amended its petition, alleging that
the full $2.5 million charge for termination of the First Lease
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was deductible as an expense in 1990. Petitioner explained that
the $793,753 deducted on the 1990 return was the amount of the
lease termination charge recorded on its books for financial
statement purposes, using capital lease accounting rules, but
that for Federal tax purposes petitioner was taking the position
that it was entitled to deduct the full termination charge of
$2.5 million for the taxable year in which it became legally
obligated to pay that amount.
A supplement to respondent’s response to petitioner's motion
for partial summary judgment partially alters respondent’s
position. Respondent now concedes that petitioner is entitled
"to an amortization deduction for one month in 1990, or to one-
sixtieth of the total $2.5 million rollover payment" because
petitioner is an accrual basis taxpayer, and because the
obligation to make the first monthly payment for the rollover
charge accrued on December 1, 1990.
Discussion
Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials. Florida Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988). Summary judgment is
appropriate where there is no genuine issue of material fact and
decision may be rendered as a matter of law. Rule 121(b);
Sundstrand Corp. v. Commissioner, 98 T.C. at 520; Jacklin v.
Commissioner, 79 T.C. 340, 344 (1982). In deciding whether to
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grant summary judgment, the factual materials and inferences
drawn from them must be considered in the light most favorable to
the nonmoving party. Bond v. Commissioner, 100 T.C. 32, 36
(1993); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). If the
conditions for summary judgment are otherwise satisfied with
respect to a single issue or fewer than all the issues in a case,
then partial summary judgment may be granted, notwithstanding
that all the issues in the case are not disposed of. Rule
121(b); Naftel v. Commissioner, supra.
The parties agree, and we concur, that no issues of material
fact are in dispute. Consequently, we may render judgment on the
issue in this case as a matter of law. Rule 121(b). The issue
for decision is whether the obligation incurred by petitioner to
pay the rollover charge to ICC is deductible as an ordinary and
necessary business expense under section 162, or whether it must
be capitalized under section 263 and amortized over the term of
the Second Lease.
Whether an expenditure may be deducted or must be
capitalized ultimately depends on the facts and circumstances
of each case. Deputy v. Du Pont, 308 U.S. 488, 496 (1940).
An expenditure incurred in a taxpayer's business may qualify as
ordinary and necessary under section 162 if it is appropriate and
helpful in carrying on that business, is commonly and frequently
incurred in the type of business conducted by the taxpayer, and
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is not a capital expenditure under section 263. Commissioner v.
Tellier, 383 U.S. 687, 689 (1966); Deputy v. Du Pont, supra at
495; Welch v. Helvering, 290 U.S. 111, 113 (1933). If a cost is
a capital expenditure, the capitalization rules of section 263
take precedence over the deduction rules of section 162, sec.
161; Commissioner v. Idaho Power Co., 418 U.S. 1, 17 (1974),
thereby preventing capital expenditures from being deducted
currently under section 162.
In determining whether a cost is a capital expenditure, the
Supreme Court in INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84
(1992), noted that deductions are exceptions to the norm of
capitalization. The Court stated that deductions are
specifically enumerated and thus are subject to disallowance in
favor of capitalization. Capital expenditures, by contrast, are
not exhaustively enumerated; rather than providing a complete
list of nondeductible expenditures, section 263 serves as a
general means of distinguishing capital expenditures from current
expenses.
The creation of a separate and distinct asset, while
sufficient to classify an expenditure as capital in nature,
Commissioner v. Lincoln Sav. & Loan Association, 403 U.S. 345,
354 (1971), is not necessary to capital classification. The
Supreme Court stated in INDOPCO that a taxpayer's realization of
benefits beyond the year in which the expenditure is incurred is
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important in determining whether the appropriate tax treatment is
a current deduction or a capital expenditure. INDOPCO, Inc. v.
Commissioner, supra at 87-88 (quoting United States v.
Mississippi Chem. Corp., 405 U.S. 298, 310 (1972) (expense that
“``is of value in more than one taxable year’” is a nondeductible
capital expenditure); Central Tex. Sav. & Loan Association v.
United States, 731 F.2d 1181, 1183 (5th Cir. 1984) (“``While the
period of the benefits may not be controlling in all cases, it
nonetheless remains a prominent, if not predominant,
characteristic of a capital item.’”)); see also FMR Corp. &
Subs. v. Commissioner, 110 T.C. 402 (1998).
Petitioner argues that as a matter of law it is entitled to
deduct the $2.5 million obligation in the year incurred as an
expense of terminating the First Lease. Petitioner relies on
Rev. Rul. 69-511, 1969-2 C.B. 24; Hall & Ruckel, Inc. v.
Commissioner, a Memorandum Opinion of this Court dated Dec. 7,
1942; C. Ludwig Baumann & Co. v. Commissioner, a Memorandum
Opinion of this Court dated May 28, 1943; and Denholm & McKay Co.
v. Commissioner, 2 B.T.A. 444 (1925), to argue that the law is
well established that a payment by a lessee to a lessor in order
to terminate a lease is an ordinary and necessary business
expense that is deductible under section 162. The rationale
underlying these holdings is that payments to terminate a lease
are not made to produce future income but are costs incurred and
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damages paid in order to be released from an existing
unprofitable arrangement. See also Cassatt v. Commissioner, 137
F.2d 745, 748-749 (3d Cir. 1943), affg. 47 B.T.A. 400 (1942).
Respondent, to the contrary, argues that as a matter of law
the obligation to pay the $2.5 million rollover charge must be
capitalized and amortized over the 5-year term of the Second
Lease. Respondent relies on INDOPCO, Inc. v. Commissioner,
supra, to argue that because the obligation to pay $2.5 million
was incurred not only in terminating the First Lease, but also in
entering into the Second Lease, the $2.5 million obligation is a
cost of obtaining significant future benefits under the Second
Lease and should therefore be capitalized over the term of the
Second Lease.
Respondent further relies on Pig & Whistle Co. v.
Commissioner, 9 B.T.A. 668 (1927), and Phil Gluckstern's, Inc. v.
Commissioner, T.C. Memo. 1956-9, to argue in favor of
capitalizing the rollover charge. These were cases of lessees
who had made lump-sum payments to purchase leaseholds, which they
then amortized over the term of the lease. Thereafter, the lease
in each of these cases was canceled and the parties entered into
another lease on the same property. In both cases the
unamortized cost of the first lease was held not to be deductible
in the year that the first lease was canceled. Rather, because
of the relationship between the successive leases, the
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unextinguished cost of the first lease was regarded as part of
the cost of the second lease that had to be amortized over the
term of the second lease.
Petitioner argues that terminating the First Lease resulted
in an economic loss in the year of termination and that the
termination provided no future benefit. Petitioner further
argues that Pig & Whistle Co. v. Commissioner, supra, and Phil
Gluckstern's, Inc. v. Commissioner, supra, in which the
termination fees were capitalized, are distinguishable from the
present case. Petitioner maintains that in those cases the
lessee canceled a lease only to enter into a second lease of the
same property with the same lessor, and that therefore the second
lease was in substance a modification of the first lease. In
petitioner’s view, the payments made to cancel the old lease were
therefore actually made to obtain the modifications whose benefit
extended throughout the term of the replacement leases. Because
the computers covered by the two leases in the case at hand were
different from each other, petitioner maintains that the Second
Lease was not merely a modification of the First Lease.
The cases brought to our attention by petitioner and
respondent occupy opposite ends of a spectrum. At one end is the
case where a lessee pays a lessor to terminate a lease and no
subsequent lease is entered into between the parties. In such a
case the termination fee is clearly deductible in the year
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incurred, as there is no second lease raising the possibility
that the lessee will realize significant future benefits beyond
the current taxable year as a result of the termination payment.
At the opposite end is the case of a lessee that cancels a lease
and then immediately enters into another lease with the same
lessor, covering the same property. In substance, the first
lease is not canceled but continues in modified form, and any
unrecovered costs of the first lease, or costs incurred to cancel
the first lease, are not currently deductible but rather are
costs of continuing the first lease in modified form.
The case at hand lies between the two extremes. It is not a
case of simply terminating a lease without entering into another
lease. Neither is it a termination of one lease, immediately
followed by entry into a second lease with the same lessor
covering the same property, insofar as the two computers covered
by the two leases are not identical. Along the range between the
extremes presented by petitioner and respondent, we find the case
at hand is both closer to and qualitatively more similar to the
modification of lease case than to the simple termination.
We therefore agree with respondent and conclude that
petitioner's obligation to pay the rollover charge4 must be
4
Respondent and petitioner characterize the $2.5 million
obligation differently. Petitioner describes the obligation as a
"termination fee", while respondent describes it as a "rollover
charge". Petitioner, through its characterization of the
(continued...)
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capitalized as a cost of acquiring the Second Lease. Our
conclusion is informed by the integrated nature of the agreements
and transactions by which the First Lease was terminated and the
Second Lease was entered into and by the reasoning of Pig &
Whistle Co. v. Commissioner, supra, and Phil Gluckstern's, Inc.
v. Commissioner, supra.
Petitioner's initiation of the Second Lease and termination
of the First Lease were integrated events that should not be
viewed in isolation. The Agreement states that the termination
of the First Lease is expressly conditioned on petitioner's
initiation of a new lease with ICC. In an affidavit attached
to petitioner's motion for partial summary judgment, James R.
Egan, vice president of U.S. Bancorp, stated: “In 1990, West One
determined that the 3090 IBM mainframe computer was inadequate
for its needs. West One decided to select a larger capacity
computer and to terminate its 3090 Lease with IBM Credit
Corporation.” Mr. Egan's representations and the fact that the
4
(...continued)
obligation, attempts to emphasize the relationship of the
obligation to the First Lease while attempting to isolate the
obligation from the future benefits provided by the Second Lease.
Respondent describes the obligation as a "rollover charge" in
order to emphasize the relationship of the obligation to both the
First Lease and the Second Lease. We find respondent's
characterization of the obligation more appropriate. The
Agreement executed by the parties was termed a "rollover
agreement", not a "termination agreement", and petitioner's
obligation to pay $2.5 million was expressly termed a "rollover
charge", not a "termination fee". We therefore generally refer
to the obligation throughout as the "rollover charge".
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First Lease was terminated upon the express condition that
petitioner finance the replacement equipment with ICC indicate
that the termination of the First Lease and the initiation of the
Second Lease were integrated, not isolated, events. So also, the
Term Lease Supplement covering the replacement equipment carries
out the Agreement by providing that the rollover charge is
financed by being paid with interest over the term of the Second
Lease by a series of level payments along with the rental
payments under the Second Lease for the replacement equipment.
The rollover charge is therefore properly viewed as a cost
of entering into the Second Lease and not merely as an isolated
fee for terminating the First Lease. Because the termination of
the First Lease and the initiation of the Second Lease were
integrated events, the obligation to pay the rollover charge was
incurred by petitioner not only to terminate the First Lease but
more importantly, as Mr. Egan explains, to obtain a larger
capacity computer; that is, to replace the equipment covered by
the First Lease with equipment covered by the Second Lease.
Petitioner’s incurring the obligation to pay the rollover charge
therefore is properly characterized as a cost of petitioner's
realization of future benefits provided by the Second Lease.
Petitioner's attempt to isolate the rollover charge, as only
relating to the First Lease and not providing any future
benefits, ignores the integrated character of the termination of
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the First Lease and the entry into the Second Lease. Petitioner
fails to acknowledge that the rollover charge was incurred not
only to terminate the First Lease, but also to get rid of the
inadequate property covered by that lease in order to obtain the
right to use the more adequate property covered by the Second
Lease. While petitioner is correct in maintaining that the law
is well settled that a payment to terminate a lease is generally
deductible in the year incurred, that law does not apply to the
case at hand, where the rollover charge is not merely a payment
to terminate the First Lease, but also a payment that results in
the realization of future benefits over the term of the Second
Lease.
Pig & Whistle Co. v. Commissioner, 9 B.T.A. 668 (1927), and
Phil Gluckstern's, Inc. v. Commissioner, T.C. Memo. 1956-9, which
respondent relies on and petitioner argues are distinguishable,
further support our conclusion that petitioner must capitalize
the amount of its obligation to pay the rollover charge. In both
those cases, lessees entered into second leases covering the same
real property, and in each case the Court stated that the lessor
would not have agreed to the cancellation of the old lease except
for the execution of the new lease. In both cases, the Court
held that, due to the continuity of rights and strong
interrelationship between the two leases, the unextinguished cost
of the first lease was part of the cost of the second lease.
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Similarly in the case at hand, there is an interrelationship
and continuity of rights between the two leases that require the
rollover charge to be treated as a cost of acquiring the Second
Lease. The cancellation of the First Lease was expressly
conditioned on the execution of the Second Lease. The parties to
the Second Lease were the same as the parties to the First Lease.
While, as petitioner point outs, the properties covered by the
two leases are not identical, they are similar in that both are
mainframe computers used for the same purposes in petitioner's
business. Cf. sec. 1031(a); Redwing Carriers, Inc. v. Tomlinson,
399 F.2d 652 (5th Cir. 1968); Coastal Terminals, Inc. v. United
States, 320 F.2d 333 (4th Cir. 1963); sec. 1.1031(a)-1(c), Income
Tax Regs.; Rev. Rul. 61-119, 1961-1 C.B. 395.
An analogous case that helps to illustrate the distinction
between the two extremes is Great W. Power Co. v. Commissioner,
297 U.S. 543, 546-547 (1936). In that case, the taxpayer called
a bond issue at 105 plus accrued interest; under the terms of the
bond issue the bondholders had the option to receive series B
bonds of equal face value, plus 5 percent in cash. At issue was
the treatment of unamortized discount and expenses associated
with the first issue of bonds as well as the premiums and other
expenses associated with the call of the first issue and the
exchange. The Commissioner having conceded that the current
deduction of those amounts was proper to the extent attributable
to the bonds redeemed for cash, the Supreme Court held that the
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remaining amounts had to be capitalized and amortized over the
life of the new bonds, just as we hold the full amount of the
rollover charge must be capitalized and amortized over the term
of the Second Lease.
There is no ground for concluding that the rollover charge
is currently deductible in full or for making an allocation under
which a portion of the charge would be currently deducted as
attributable to the termination of the First Lease and a portion
capitalized and amortized over the Second Lease. Although the
apparent paradox--arising from the likelihood that the charge
would have been higher if petitioner had not entered into the
Second Lease with ICC--gives us pause, any doubts are resolved by
the advantage petitioner obtained, by entering into the Second
Lease, of being able to finance the charge over the term of the
Second Lease.
In sum, we hold that petitioner's obligation to pay the
rollover charge is a capital expenditure that is not currently
deductible and must be amortized over the 5-year term of the
Second Lease. Respondent has conceded that petitioner, as an
accrual basis taxpayer, had accrued a 1-month liability for the
rollover charge on December 1, 1990. As we construe respondent's
concession, petitioner is entitled to an amortization deduction
of $53,775 for the year 1990, equal to the first installment,
which accrued in that year, of the obligation to pay the $2.5
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million rollover charge, with interest, over the term of the
Second Lease.
To reflect the foregoing,
An order will be issued
granting respondent’s motion
for partial summary judgment
and denying petitioner’s motion
for partial summary judgment.