The opinion
Foley, J., concurring in result only: I agree with the majority’s holding. Specifically, I agree that our analysis should focus on the nature of the rights petitioner acquired. I do not agree, however, with two aspects of the majority’s opinion. The majority’s examination in part II. C of “the Distinction Between Seismic Data and a Computer Program” is unpersuasive. Majority op. p. 370. Moreover, this analysis is unnecessary under the new approach adopted by the majority, which focuses on the underlying property rights in, rather than the physical characteristics of, the asset acquired. In addition, the legislative history accompanying the investment tax credit does not support the majority’s assertion in part II.E that petitioner’s acquisition of software is “precisely the type of investment Congress intended to encourage in enacting the ITC.” Majority op. p. 375. This is an unfounded statement of congressional prescience rather than congressional intent. The legislative history relied on by the majority related to the original enactment of the ITC in 1962. At that time, Congress probably did not foresee the myriad of technological innovations relating to computer software. Therefore, the legislative history accompanying the ITC provides minimal, if any, guidance in determining whether petitioner’s purchase qualifies for the credit.
I agree with the majority that “resolution of the issue before the Court should begin with the term ‘tangible personal property’ and end with an examination of the legislative history of the ITC.” Majority op. p. 374. In the absence of legislative guidance on this issue, it is reasonable and appropriate to analyze the nature of the rights petitioner acquired and conclude that petitioner’s software qualifies for the ITC as tangible personal property.
Parr, J., agrees with this concurring in result only opinion.