dissenting: The majority refuses to consider whether the exit and entrance fees should be capitalized as costs incurred in connection with the acquisition of a capital asset because the majority believes that respondent failed to include this theory in his determination. The majority reads the notice of deficiency too narrowly. Respondent’s determination, as contained in the notice of deficiency, states:
It has been determined that your deductions for the entrance and exit fee paid to the Federal Deposit Insurance Corporation for the transfer of your insured deposits from one depository insurance to another depository insurance fund is a non-deductible capital expenditure that is not subject to depreciation or amortization.
The language contained in the notice of deficiency is broad and disallows deduction of the fees simply because respondent determined that the fees were capital expenditures.
The broad language contained in the notice of deficiency should not have misled petitioner into believing that it did not have to establish that the fees were not costs incurred in connection with the acquisition of a capital asset. Petitioner’s primary argument on brief was that the fees were for deposit insurance coverage for the years in issue. Petitioner’s alternative argument was that if the fees must be capitalized, then they are to be associated with the acquired deposits and amortized over the useful life of the core deposits. Thus, petitioner recognized that the fees might be viewed as being incurred in connection with the acquisition of capital assets. There is nothing to indicate that there were any additional facts bearing on this case that could have been introduced. This case was submitted on the stipulated facts, and there is nothing to indicate that petitioner was not aware of its burden of proving entitlement to the claimed deductions, including the need to establish that the fees were not incurred in connection with the acquisition of assets.
This is not a case where respondent issued a narrowly drawn notice of deficiency and subsequently advanced new grounds not directly or implicitly within the ambit of the determination. See Pagel, Inc. v. Commissioner, 91 T.C. 200, 212 (1988), affd. 905 F.2d 1190 (8th Cir. 1990); Sorin v. Commissioner, 29 T.C. 959, 969 (1958), affd. per curiam 271 F.2d 741 (2d Cir. 1959); Weaver v. Commissioner, 25 T.C. 1067, 1085 (1956). While the language contained in the notice of deficiency does not specifically state that the fees were costs incurred in connection with the acquisition of a capital asset, that is a reason for capitalization that is within the scope of the determination. The failure to enumerate every theory that could support a determination should not prevent us from deciding this case on what we consider to be the correct application of the law to the facts presented. See Rendina v. Commissioner, T.C. Memo. 1996-392; Barnette v. Commissioner, T.C. Memo. 1992-595, affd. without published opinion sub nom. Allied Management Corp. v. Commissioner, 41 F.3d 667 (11th Cir. 1994). Indeed, this Court has recognized on several occasions that we have the inherent authority to decide a case on grounds not raised in the notice of deficiency and will do so if petitioner is not surprised or prejudiced by the ground. See Seligman v. Commissioner, 84 T.C. 191, 198 (1985), affd. 796 F.2d 116 (5th Cir. 1986); Estate of Horvath v. Commissioner, 59 T.C. 551, 555 (1973); Barr v. Commissioner, T.C. Memo. 1989-69 n.24; Gmelin v. Commissioner, T.C. Memo. 1988-338 n.18, affd. without published opinion 891 F.2d 280 (3d Cir. 1989).1
Petitioner bears “the burden of clearly showing the right to the claimed deduction”. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992). In order for us to decide that petitioner is entitled to a current business expense deduction under section 162(a), petitioner must establish that the fees: (1) Did not create or enhance a separate or distinct asset;2 (2) did not create significant future benefits;3 and (3) were not incurred in connection with the acquisition of a capital asset.4
Capitalization is generally required for expenditures that are incurred by a taxpayer “in connection with” the acquisition of an asset. Such expenditures include more than just the stated purchase price of the asset. For example, wages paid in connection with the acquisition of a capital asset or legal fees paid to consummate an acquisition must be capitalized. See Commissioner v. Idaho Power Co., 418 U.S. 1 (1974); American Stores Co. & Subs. v. Commissioner, 114 T.C. 458 (2000).
In Commissioner v. Idaho Power Co., supra at 13, the Supreme Court observed:
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. * * *
In American Stores Co. & Subs. v. Commissioner, supra at 469, we explained:
A particular cost, no matter what its type, may be deductible in one context but may be required to be capitalized in another context. Simply because other cases have allowed a current deduction for similar expenses in different contexts does not require the same result here. * * *
As previously indicated, expenditures which otherwise might qualify as currently deductible must be capitalized if they are incurred “in connection with” the acquisition of a capital asset. Commissioner v. Idaho Power Co., supra at 13. * * *
As further explained in Ellis Banking Corp. v. Commissioner, 688 F.2d 1376, 1379 (11th Cir. 1982) affg. in part and remanding in part T.C. Memo. 1981-123:
The requirement that costs be capitalized extends beyond the price payable to the seller to include any costs incurred by the buyer in connection with the purchase, such as appraisals of the property or the costs of meeting any conditions of the sale. See, e.g., Woodward v. Commissioner, 1970, 397 U.S. 572, 90 S.Ct. 1302, 25 L.Ed.2d 577; United States v. Hilton Hotels Corp., 1970, 397 U.S. 580, 90 S.Ct. 1307, 25 L.Ed.2d 585. Further, the Code provides that the requirement of capitalization takes precedence over the allowance of deductions. §§161, 261; see generally Commissioner v. Idaho Power Co., 1974, 418 U.S. 1, 94 S.Ct. 2757, 41 L.Ed.2d 535. Thus an expenditure that would ordinarily be a deductible expense must nonetheless be capitalized if it is incurred in connection with the acquisition of a capital asset.6 The function of these rules is to achieve an accurate measure of net income for the year by matching outlays with the revenues attributable to them and recognizing both during the same taxable year. When an outlay is connected to the acquisition of an asset with an extended life, it would understate current net income to deduct the outlay immediately. * * *
Metrobank chose to acquire Community’s assets. One way to accomplish this was through a conversion transaction where assets of an SAlF-insured institution are transferred to a BlF-insured institution and, after the transfer, all deposits are insured by the BIF. Pursuant to this method, Metrobank was required to pay the exit and entrance fees. The other way Metrobank could have acquired Community’s assets was to effect a merger with Community. If Metrobank had chosen to acquire Community through a merger it would have avoided the requirement to pay exit and entrance fees, but the deposits acquired from Community would have continued to be insured by the SAIF. Metrobank undoubtedly had its reasons for not entering into a merger transaction. On brief, petitioner states that among its reasons for choosing to acquire Community’s assets in a conversion transaction in which it had to pay the exit and entrance fees were to reduce future deposit insurance premiums and reduce the future regulatory and reporting requirements that would otherwise have applied.5
The fact that the expenditures by Metrobank were incurred in connection with the acquisition of Community’s assets is especially clear in the case of the exit fee. On page 222, the majority asserts that the “purpose” of the exit fee was to protect the integrity of the SAIF for the potential benefit of SAIF participants. While this may have been the FDic’s purpose, it surely was not one of Metrobank’s business purposes. Metrobank was never insured by the SAIF and derived no insurance coverage from the SAIF in return for payment of the exit fee. To the extent that “purpose” is relevant to the issue of capitalization versus deduction, it is the payor’s (taxpayer’s) purpose for making an expenditure that controls whether the expenditure must be capitalized. See INDOPCO, Inc. v. Commissioner, 503 U.S. at 85, 88-89. The majority, at p. 222, erroneously relies on the payee’s purpose for imposing the exit fee in order to justify the payor’s (petitioner’s) deduction.
The majority allows the exit fee as an insurance expense deduction. It justifies its conclusion that the exit fee did not produce significant future benefits for Metrobank by finding that all the insurance benefits from the SAIF had been received prior to Metrobank’s acquisition of Community’s assets.6 The majority thus rejects petitioner’s primary argument that the exit fee was paid for deposit insurance coverage that Metrobank received during the years in issue.7 As described on page 222 of the majority opinion, the exit fee paid by Metrobank was for insurance coverage that Community’s deposit liabilities had received before Metrobank acquired Community’s assets and assumed its liabilities.8 Nevertheless, the majority concludes that “Metrobank paid the exit fee to the SAIF as a nonrefundable, final premium for insurance that it had already received.” Majority op. p. 223. (Emphasis added.) Of course, if the exit fee was paid for insurance that Metrobank had already received, it would follow that there was no significant future benefit. However, the majority’s conclusion that the exit fee was a “premium” for insurance coverage that Metrobank had already received from the SAIF is clearly wrong.
Metrobank never received any “insurance” benefit from the SAIF. Any SAIF insurance benefit was derived prior to Metrobank’s acquisition of Community’s assets. Indeed, the majority acknowledges that “Metrobank was not affiliated with the SAIF either before or after the transaction” whereby it acquired Community’s assets and liabilities. Majority op. p. 222. Metrobank would have no reason to pay for “insurance” coverage on deposits for a period prior to its acquisition of those deposits. It is obvious that Metrobank paid the exit fee because it was required in order for Metrobank to acquire Community’s assets. The exit fee was paid for, and in connection with, the acquisition of Community’s assets.
Petitioner has failed to prove its entitlement to the deductions in issue. The uncontroverted facts show that the fees were costs incurred in connection with the acquisition of a capital asset. Accordingly, the fees should be capitalized.
Whalen, Halpern, Beghe, Gale, and Marvel, JJ., agree with this dissenting opinion.
Where the record contains sufficient facts to permit us to decide a case on an issue that would dispose of it, we shall do so, regardless of whether the parties have pleaded the issue. See Rendina v. Commissioner, T.C. Memo. 1996-392; Barnette v. Commissioner, T.C. Memo. 1992-595, affd. without published opinion sub nom. Allied Management Corp. v. Commissioner, 41 F.3d 667 (11th Cir. 1994); see also Park Place, Inc. v. Commissioner, 57 T.C. 767, 768-769 (1972).
See Commissioner v. Lincoln Sav. & Loan Association, 403 U.S. 345, 354 (1971).
See INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 87-88 (1992).
See Commissioner v. Idaho Power Co., 418 U.S. 1, 13 (1974); American Stores Co. & Subs. v. Commissioner, 114 T.C. 458, 469 (2000).
We do not use the term “capital asset” in the restricted sense of section 1221. Instead, we use the term in the accounting sense, to refer to any asset with a useful life extending beyond one year.
These objectives appeal- to be significant long-term benefits that support respondent’s argument. Petitioner states on page 13 of its brief:
Metrobank’s purposes for incurring the expenditures were twofold. First, by electing to convert the deposits assumed from the SAIF to the BIF, Petitioner hoped to reduce future deposit insurance assessments because the BIF assessment rate was much less than the SAIF assessment rate. Second, Petitioner was already a member of BIF and understood the FDIC rules and regulations for insurance coverage through this system. Maintaining insurance coverage under both funds would significantly increase the reporting and administrative requirements on an ongoing basis.
Petitioner acquired Community’s assets on Nov. 2, 1990.
The years in issue are petitioner’s fiscal years ending Oct. 31, 1993, 1994, and 1995.
It is ironic that the majority relies on this theory that petitioner never argued. Petitioner argued that the exit fee paid to the SAIF was for insurance coverage that it received during the years in issue. The majority correctly recognizes that Metrobank was not insured by the SAIF during those years.