UNITED STATES TAX COURT

110 T.C. No. 30

UNITED STATES TAX COURT

FMR CORP. AND SUBSIDIARIES, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15711-94.

Filed June 18, 1998.

P provides investment management services to

regulated investment companies (RIC's), which are

commonly referred to as mutual funds. During the years

in issue, P incurred costs for developing and launching

82 new RIC's. The expenditures incurred in launching

new RIC's were intended to, and did, provide

significant future benefits to P.

Held: The expenditures are not currently

deductible under sec. 162(a), I.R.C., and must be

capitalized under sec. 263(a), I.R.C.

Held, further: P failed to establish a limited

life for the future benefits obtained from the costs of

launching RIC's. P may not amortize such costs under

sec. 167, I.R.C.

- 2 Leslie J. Schneider, Patrick J. Smith, Frederic G. Corneel,

and Kenneth J. Seaman, for petitioner.

Steven R. Winningham, Martin L. Shindler, Marvis A. Knospe,

and Tyrone J. Montague, for respondent.

RUWE, Judge:

Respondent determined deficiencies in

petitioner's Federal income taxes as follows:

Year

1985

1986

1987

Deficiency

1

$111,905

534,142

99,042

1

Respondent was granted leave to amend the answer, asserting

that petitioner is liable for an increased deficiency for 1985 in

the amount of $48,156. Thus, the total deficiency determined by

respondent for 1985 is $160,061.

The issues for decision are:

(1) Whether the costs

petitioner incurred in starting new regulated investment

companies during the years in issue are deductible as ordinary

and necessary business expenses under section 1621 or must be

capitalized; and (2) if the costs are capital expenditures,

whether petitioner is entitled to deduct an amortized portion of

such costs under section 167.

1

Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect during the years in issue,

and all Rule references are to the Tax Court Rules of Practice

and Procedure.

- 3 FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

The stipulation of facts is incorporated herein by this

reference.

Petitioner's Forms 1120, U.S. Corporation Income Tax

Return, for the years in issue were filed with respondent's

Service Center in Andover, Massachusetts.

At the time it filed

the petition in this case, petitioner's principal place of

business was located in Boston, Massachusetts.

General Background

FMR Corp. is the parent holding company of an affiliated

group of corporations. Hereinafter we shall refer to FMR Corp. as

petitioner.

Petitioner provides investment management services,

through its operating subsidiary, Fidelity Management & Research

Co. (FMR Co.), to regulated investment companies (or RIC's, which

are commonly known to the investing public as "mutual funds")

under a contract with each RIC.

As of January 1, 1996,

petitioner provided such services to 232 RIC's.

Petitioner began in 1946 as the investment adviser to a

single RIC, the Fidelity Fund, which invested in stocks.

For

most of the following three decades, petitioner created and

rendered services to additional RIC's, which also invested only

in stocks.

In the 1970's, petitioner began to create RIC's that

invested in bonds (fixed income funds) and in short-term

- 4 corporate and governmental obligations (money market funds).

These RIC's began to attract the investing public, particularly

when coupled with a novel feature such as the checkwriting

feature of petitioner's money market fund.

By 1980, petitioner managed $8.2 billion of assets for 21

different RIC's.

At the beginning of 1985 (the first year in

issue), petitioner managed $35.8 billion in assets for 79 RIC's,

and by the end of 1987 (the last year in issue), petitioner

managed $71.8 billion for 140 RIC's.

Petitioner is the sole underwriter and distributor of the

shares in the RIC's that it manages in the Fidelity family.2

Petitioner divides its distribution functions between Fidelity

Distributors Corp. (FDC) and Fidelity Investments Institutional

Services Co. (FIIS), depending upon whether the shares in the

RIC's are sold directly to the public or to or through

institutions, respectively.

In accordance with this distribution

scheme, petitioner classifies the RIC's that it manages as either

retail funds; i.e., those the shares of which are directly

offered to the public, or institutional funds; i.e., those the

shares of which are offered to, or through large institutions,

such as financial planners, banks, insurance companies, or

employee plans.

2

The marketing efforts of the retail RIC's are

The group of funds managed by a particular investment

adviser is known in the industry as that adviser's "family of

funds".

- 5 planned and executed by Fidelity Investments Retail Marketing Co.

(Retail Marketing).

The marketing efforts of the institutional

RIC's are planned and executed by FIIS.

In addition to marketing

and distribution efforts on behalf of existing RIC's, Retail

Marketing and FIIS are responsible for coordinating the

establishment and introduction of new RIC's for retail and

institutional distribution, respectively.

The majority of the funds managed by petitioner are retail

funds.

All except two of these retail funds are "open-end"

funds, which means that shareholders in the RIC may redeem their

shares upon demand at a price based upon net asset value.

During

the years in issue, many of the equity retail RIC's were "load

funds", which means that the sale of shares in the RIC's was

subject to a sales charge.

Most of the institutional and all the

fixed income and money market RIC's were "no-load" funds, not

subject to a sales charge.

During the years in issue, petitioner

began to eliminate the load charge for most of the equity RIC's

it managed, either temporarily or permanently.3

Petitioner also

expanded its "exchange privilege" so that a shareholder could

redeem the shares in one RIC to purchase shares in another RIC in

the Fidelity family incurring little or no additional load

charge, depending upon whether the load on the purchased shares

was greater or less than the load on the redeemed shares.

3

Currently, most of the retail funds managed and advised by

petitioner are "no-load" mutual funds.

- 6 Investment Disciplines of the RIC's

Each RIC offers a distinct investment discipline (or

objective), or a distinct service feature (e.g., required minimum

investment, checkwriting, etc.) different, to a greater or lesser

extent, from every other RIC in the Fidelity family.

Although

each RIC is different, the differences in the investment

disciplines and objectives can be minor, such as the difference

between a New York and New Jersey bond fund, or major, such as

the difference between investing in low grade corporate

securities and Treasury bills.

The investment disciplines and

features are described in the offering prospectus for each RIC.

Petitioner classifies the RIC's that it manages according to

three general types of financial instruments the RIC invests in:

Equity funds, money market funds, and fixed income funds.

Equity

funds (also known to the public as "stock funds") are RIC's that

invest in corporate stocks (equities).

The category of equity

funds can be further subdivided into:

Growth funds, growth and

income funds, international funds, asset allocation funds, and

sector funds.

Typically, the stated investment discipline for a

RIC in the equity group also permits investment in bonds and

money market instruments.

Money market funds are RIC's that

invest in money market instruments such as short-term corporate

and governmental obligations.

Money market funds are

subclassified into "taxable" and "municipal" (or "tax-free")

- 7 RIC's.

Fixed income funds are RIC's that invest in corporate,

Government, and municipal bonds.

Fixed income funds are also

subclassified into "taxable" and "municipal" RIC's.

Petitioner's

subsidiary, FMR Co., is the investment adviser/manager for all

the RIC's in the Fidelity family.

Regulatory Background

Petitioner's activities in creating and managing RIC's are

governed by the Investment Company Act of 1940 (the 1940 Act),

ch. 686, tit. I, secs. 1 through 53, 54 Stat. 789-847, current

version at 15 U.S.C. secs. 80a-1 through 80a-64 (1994).

The 1940

Act regulates the creation and management of RIC's, which are

separate investment companies under the 1940 Act.

RIC's are

formed as either domestic corporations, partnerships, trusts, or

series within existing trusts.

The activities of FMR Co. are

governed by the Investment Advisers Act of 1940 (the Advisers

Act), ch. 686, tit. II, secs. 201 through 221, 54 Stat. 847, 15

U.S.C. secs. 80b-1 through 80b-21 (1994), which regulates the

registration and activities of investment advisers.

Petitioner's

activities in offering shares in the RIC's to the public are

governed by the Securities Act of 1933, ch. 38, 48 Stat. 74, 15

U.S.C. secs. 77a through 77aa, which regulate the registration

and issuance of securities.

Section 80a-8(a) of the 1940 Act requires any investment

company to register with the Securities and Exchange Commission

- 8 (SEC).

The 1940 Act permits one trust document to serve as the

governing instrument for more than one RIC.

Each additional RIC

covered by a preexisting trust document is established as a

separate "series" of that trust.

In effect, the trust

establishing one RIC can support any number of additional

separate series RIC's.

RIC's are governed by a board of directors (or trustees)

initially assembled by the RIC sponsor, who, like petitioner, is

usually also the RIC adviser and the RIC distributor.

After the

selection of the initial board of trustees, vacancies on the

board of trustees are filled by nominations from the board of

trustees, subject to shareholder approval.

In the case of RIC's

established as separate series, they are automatically governed

by the board of trustees of the preexisting trust.

The 1940 Act was passed, in part, to protect investors by

regulating the potential conflict of interest arising from the

fact that RIC's are typically created and managed by the

investment adviser.

Section 80a-10(a) of the 1940 Act regulates

this type of potential conflict by requiring that a RIC's board

of trustees consist of members no more than 60 percent of whom

can be "interested persons of such registered company."

A RIC

has no employees, and its board of trustees oversees the

investment adviser's activities to insure that the RIC's

securities investments remain consistent with its investment

objective, that the RIC's portfolio meets an acceptable level of

- 9 performance, and that the expenses paid by the RIC, including the

investment adviser's management fee, are reasonable.

Section 80a-15(a) of the 1940 Act requires that management

contracts between an adviser and a RIC have an initial term of 2

years, be renewable annually thereafter, and be terminable at

will by the RIC's board of trustees upon 60 days' notice without

penalty.

Under section 80a-15(c) of the 1940 Act, the initial

management contract and all annual renewals must be approved by a

majority of the independent directors/trustees, who must comprise

no less than 40 percent of the entire board of trustees.

Although a majority of the independent trustees must approve the

initial management contract and all renewals, under the 1940 Act,

a majority of the independent trustees cannot otherwise terminate

a management contract unless they represent a majority of the

entire board of trustees.

Notwithstanding the termination

provisions of the 1940 Act, in the experience of the mutual fund

industry, it is highly unusual for a management contract to be

either terminated or not renewed by a RIC's board of trustees.

Prior to selling shares in a new RIC, section 80a-8 of the

1940 Act requires that the RIC be registered with the SEC.

The SEC registration includes copies of the proposed management

contract and all other material contracts executed on behalf of

the RIC, as well as the offering prospectus, which includes a

statement of the investment discipline or objective of the RIC.

No one has the right to offer shares in a new RIC to the public

- 10 until: (1) The RIC is formed as either a domestic corporation,

partnership, trust, or series within an existing trust; (2) the

required 1933 Act SEC registration becomes effective; (3) the

management contract is executed; and (4) the required 1940 Act

registration of the investment company becomes effective.

The Board of Trustees

All the RIC's in the Fidelity family are governed by a

common board of trustees, which meets monthly (except for August)

in a special "boardroom" in petitioner's offices.

Neither the

board of trustees nor any of the RIC's it oversees have any

employees or office facilities.

During the years at issue, the common board of trustees had

11 members (3 "interested" and 8 independent trustees).

In

exercising its fiduciary responsibilities to consider and approve

each separate management contract, the board of trustees reviews

the financial performance of each individual RIC.

To assist the

board of trustees in carrying out its responsibilities, FMR Co.

compiles shareholder composition, financial, profitability, and

other data on each RIC.

It also compiles data on comparable

RIC's and their performance, management fees, and expenses

ratios.

All these data are presented to the board of trustees

for review.

FMR Co. also prepares oral and, sometimes,

videotaped presentations to highlight the data under review by

the board of trustees.

- 11 For administrative convenience, the board of trustees

considers renewal of the contracts with petitioner over a 3-month

period, by general investment category, reviewing and renewing

contracts to manage all equity funds (RIC's that invest in

stocks) in a given month; all fixed income funds (RIC's that

invest in Bonds) in another month; and all money market funds

(RIC's that invest in commercial paper and other obligations) in

another month.

The common board of trustees for the RIC's in the

Fidelity family has never exercised its right of termination or

otherwise failed to renew a management contract with petitioner.

Between 1980 and 1995, FMR Co. has recommended, and the

board of trustees has approved, the merging or closing of 23

RIC's.

Of the 82 RIC's which were created during the years at

issue, FMR Co. recommended, and the board of trustees approved,

the merging of 6 retail RIC's and the closing of 2 institutional

RIC's.

Prior to offering shares in a new RIC to the public, FMR Co.

must obtain three different approvals from the board of trustees.

The three board approvals involve:

(1) Approval to create the

RIC; (2) approval to register the new RIC with the SEC; and (3)

approval of the initial management contract.

When petitioner

determines that a new RIC concept merits consideration by the

board of trustees, petitioner prepares a memorandum to the board

of trustees.

Once petitioner receives the board of trustees'

- 12 approval, petitioner files the RIC's registration statement with

the SEC.

During the years in issue, SEC registrations for RIC's

became effective 60 days after filing.

During this 60-day

period, the SEC could submit comments and questions to petitioner

concerning the registration.

Unless the SEC issued a stop order,

the registration became effective 60 days after filing.

At or before the time that the RIC's SEC registration would

become effective, petitioner, by memorandum to the board of

trustees, requested approval of the initial management contract.

Petitioner submitted this memorandum to the board of trustees at

a regularly scheduled meeting.

Only after the board of trustees

approved the initial management contract and the SEC registration

became effective, could petitioner begin selling shares in the

RIC to the investing public.

Petitioner's RIC's

During the years in issue, petitioner created, and entered

into separate contracts to manage, 82 new RIC's.

Each new RIC

launched by petitioner is formed as a trust, or as a series of an

already existing trust.

The decision to create a new trust or a

new series within an existing trust turns upon practical

considerations like matching fiscal years or similarity of the

new investment discipline or objective to those of preexisting

- 13 trusts.

A RIC formed as a separate "series" of an existing trust

is, nevertheless, treated as a separate company under the 1940

Act and treated as a separate corporation under section 851(h).4

The RIC's created during the years at issue are governed by

the trust instruments of 26 different Massachusetts business

trusts.

During the years at issue, petitioner created two new

trusts for two of the RIC's created.

The remaining 80 RIC's

created during the years at issue were established as separate

series within preexisting trusts.5

Since one trust may serve as the governing instrument for

many separate RIC's, the trust document provides that the assets

of the trust received for the issue or sale of shares of each RIC

and all income, earnings, profits, and proceeds are segregated

and allocated to such RIC and constitute its underlying assets.

The underlying assets of a RIC are segregated on the books of

account and are charged with the liabilities of the RIC and a

share (based upon a proportion of the RIC's asset value) of the

trust's general expenses.

4

Sec. 851(h) applies to tax years beginning after Oct. 22,

1986.

5

A Declaration of Trust permits the trustees to create

additional RIC's to be governed by a given trust document. The

Declaration of Trust provides that in the event that FMR Co.

ceases to act as investment adviser to the trust or RIC, the

right of the trust or RIC to use identifying names, such as

"Fidelity" or "Spartan", terminates.

- 14 In addition to executing an investment advisory and

management contract (the management contract) with FMR Co., each

RIC managed by FMR Co. executes contracts appointing Fidelity

Service Co. (FSC) or Fidelity Investments Institutional

Operations Co. (FIIOC), divisions of petitioner, as agent for the

transfer of shares, recordkeeping and disbursements.

Under

separate contracts between the trusts (not each RIC within a

given trust) and FDC, petitioner distributes and markets shares

in all but three of the RIC's it manages.

After petitioner creates a new RIC, and prior to actually

selling shares to the public, petitioner supplies the initial

investment (seed money) for the RIC to establish the beginning

portfolio.

If the RIC is being established as a new trust,

rather than as a series within an existing trust, the SEC

requires petitioner to fund the RIC with $100,000 of seed money

for at least 2 years.

In practice, petitioner, through FMR Co.

or its wholly owned subsidiary FMR Capital, seeds each new RIC

with between $1 and $3 million (as needed to establish a

diversified opening portfolio), and by so doing, petitioner

acquires shares in, and thus an ownership interest in, the new

RIC.

As sole shareholder, petitioner votes to approve the

initial directors (in the case of a new trust) and ratifies the

management contract with itself.

As the new RIC receives money

from the public, petitioner begins to redeem its investment in

the RIC.

Petitioner attempts to redeem the seed money in an

- 15 orderly fashion, to avoid disrupting the portfolio.

Petitioner

usually retains its seed money as an ownership interest in a

given RIC until the interest is diluted, through purchases of

shares by the public, to about a 10-percent stake.

Only the RIC's managed by petitioner, which comprise the

Fidelity family, may be marketed under the Fidelity name.

Although it is not uncommon for a shareholder to have shares in

more than one Fidelity RIC, each of the RIC's in Fidelity's

family of RIC's has a different and ever-changing stockholder

composition; i.e., the ownership of each RIC is different from

that of every other RIC in the Fidelity family.

The following

table shows the number of RIC's and the total amount of assets in

these RIC's for the years 1982 to 1995:

Year

Number of RIC's

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

43

48

57

79

109

140

156

162

181

184

193

204

213

232

Assets Under

Management (in billions)

$18.2

21.4

25.3

35.8

59.6

71.8

77.4

98.9

110.5

144.3

172.8

237.7

275.0

373.3

- 16 Of the RIC's launched during the years in issue, those remaining

in the same form as originally launched contained over $109

billion in assets as of 1995, or approximately 30 percent of the

total assets under petitioner's management for that year.

Management Contracts

The provisions of the management contracts between each of

the RIC's and FMR Co. are substantially identical, except for the

actual management fees and other minor differences.

FMR Co.

utilizes two basic forms of management contract, Spartan and

non-Spartan.

Spartan RIC's pay an all-inclusive management fee,

which fee is greater than the management fee paid by equivalent

non-Spartan RIC's, in exchange for FMR Co.'s paying most of the

RIC's expenses, including the transfer agent fees.

Spartan RIC's

require shareholders to open an account with a higher minimum

investment than the non-Spartan RIC's.

In accordance with the individual contracts entered into

between petitioner and the RIC's, each RIC pays a management fee

to FMR Co.

In Spartan contracts, the management fee is a fixed

percentage of the average net assets of the RIC.

In non-Spartan

contracts, this fee consists of a group fee rate (payable in

accordance with the schedule included in the management

contract), an individual RIC fee rate, and, in the case of some

equity RIC's, a performance fee.

The group fee is based upon the

monthly average of the net assets of all petitioner's proprietary

- 17 RIC's.

The individual RIC fee is a fixed percentage of a monthly

average of net assets.

The performance fee is based upon a given

RIC's performance measured against an industry index, such as the

Standard & Poors 500, and the fee may increase or decrease

depending upon whether the performance of the given RIC is higher

or lower than the applicable index.

The percentage used to

calculate the management fee earned by petitioner from the 82

RIC's in issue was not the same for all 82 RIC's.

However, all

petitioner's management fees under the various contracts are

dependent upon the amount of assets in each individual RIC.

Terms of Contracts With Petitioner's Other Affiliates

Pursuant to a distribution agreement between the RIC and

FDC, FDC must use all reasonable efforts to secure purchasers for

the RIC's shares.

FDC initially incurs the promotional and

administrative expenses associated with the offer and sale of the

RIC's shares.

Pursuant to a transfer agent agreement, FSC acts

as transfer, dividend disbursing, and shareholder servicing agent

for the RIC.

FSC receives annual account fees and asset-based

fees for each retail account and certain institutional accounts

based on account size.

FSC also calculates the RIC's net asset

value per share and dividends and maintains the RIC's accounting

records, and in return, FSC receives pricing and bookkeeping fees

for these services based upon the RIC's average net assets.

- 18 The following table shows petitioner's revenues for the

years 1982 through 1995 from management and investment advisory

fees, transfer agent and fund accounting fees, mutual fund

commissions, and "other" (principally brokerage commissions):

Revenue

Year

Management and

Investment Advisory

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

$77,900

96,700

123,500

151,100

251,853

381,091

379,195

453,671

515,218

590,961

716,651

1,060,832

1,516,212

1,865,065

($1,000)

Transfer Agent and

Fund Accounting

$23,700

32,200

39,600

50,300

102,228

179,435

168,455

208,197

261,402

327,216

412,847

589,707

835,761

1,058,957

Mutual Fund

Commissions

Other

Total

$20,900

64,400

57,400

68,900

238,546

228,526

66,983

87,277

96,377

134,054

162,522

276,731

275,628

293,974

$32,600

61,600

41,300

118,300

225,161

294,926

262,080

360,333

401,496

437,158

551,308

788,147

977,026

1,058,679

$155,100

254,900

261,800

388,600

817,788

1,083,978

876,713

1,109,478

1,274,493

1,489,389

1,843,328

2,715,417

3,604,627

4,276,675

Adjustments at Issue

The adjustments at issue are petitioner's own estimates of

the expenditures it incurred during the years in issue in

launching 82 new RIC's.

Those expenditures were incurred in a

series of activities beginning with the development of the idea

for the new RIC, and continuing with the development of the

initial marketing plan, drafting of the management contract,

formation of the RIC, obtaining the board of trustees' approval

of the contract, and registering the new RIC with the SEC and the

various States in which the RIC would be marketed.

This series

of activities continues up to the point when each new RIC has

been effectively registered with the SEC but before shares in the

new RIC are actually offered to the public.

These activities are

- 19 collectively referred to as "RIC launching activities".

No

activities incurred after the launch of a new RIC, such as

advertising or subsequent annual SEC filings, are included in RIC

launching activities, and respondent has not challenged the

deductibility of the cost of such postlaunch activities.

Petitioner estimates its total costs for RIC launching activities

for 81 new RIC's were $1,259,226, $1,591,010, and $659,772, in

1985, 1986, and 1987, respectively.

During 1985, petitioner

launched a RIC, the estimated costs of which were not included in

either the notice of deficiency or the costs stated above.

The

estimated cost to launch this RIC was $116,318, thereby making

the 1985 total cost of RIC launching $1,375,544.

Respondent

accepts petitioner's estimates for purposes of conclusively

establishing the amounts in issue in the instant case.

OPINION

The principal issue for decision is whether petitioner is

entitled to a section 162(a) deduction for expenditures incurred

in launching 82 RIC's during the years in issue.

Section 162(a)

allows as a deduction "all the ordinary and necessary expenses

paid or incurred during the taxable year in carrying on any trade

or business".

To qualify as an allowable deduction under section

162(a), an item must:

(1) Be paid or incurred during the taxable

- 20 year; (2) be for carrying on any trade or business; (3) be an

expense; (4) be a necessary expense; and (5) be an ordinary

expense.

Commissioner v. Lincoln Sav. & Loan Association, 403

U.S. 345, 352 (1971).

Respondent does not dispute whether the expenditures in

issue were "paid or incurred during the taxable year", or whether

the expenditures were "necessary" in the accepted sense of

"'appropriate and helpful' for 'the development of the

[taxpayer's] business'".

Id. at 353 (quoting Commissioner v.

Tellier, 383 U.S. 687, 689 (1966)).

However, respondent does not

agree that any of the expenditures in issue can be deemed either

an "expense" or an "ordinary expense" capable of deduction under

section 162.6

Id. at 354.

In Commissioner v. Tellier, supra at 689-690, the Supreme

Court stated:

The principal function of the term "ordinary" in §

162(a) is to clarify the distinction, often difficult,

between those expenses that are currently deductible

and those that are in the nature of capital

expenditures, which, if deductible at all, must be

amortized over the useful life of the asset. * * *

6

In this context, the term "expense" must be distinguished

from an expenditure that is capital in nature. As stated in

Commissioner v. Lincoln Sav. & Loan Association, 403 U.S. 345,

354 (1971), a payment that serves to create a separate and

distinct asset is, as an inevitable consequence, "capital in

nature and not an expense, let alone an ordinary expense". On

the other hand, the principal function of the term "ordinary" has

been to distinguish between expenditures that are capital in

nature and those that are currently deductible expenses.

- 21 A capital expenditure is not an "ordinary" expense within the

meaning of section 162(a) and is therefore not currently

deductible.

Commissioner v. Lincoln Sav. & Loan Association,

supra at 353; see sec. 263(a)7.

The principal effect of

characterizing a payment as either an ordinary expense or a

capital expenditure concerns the timing of the taxpayer's cost

recovery.

A business expense is currently deductible, while a

capital expenditure is normally amortized and depreciated over

the life of the relevant asset, or, if no specific asset or

useful life can be ascertained, is deductible upon dissolution of

the enterprise.

84 (1992).

INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 83-

Whether an expenditure may be deducted or must be

capitalized is a question of fact.

The "'decisive distinctions'

between current expenses and capital expenditures 'are those of

degree and not of kind'".

Id. at 86 (quoting Welch v. Helvering,

290 U.S. 111, 114 (1933)).

An expenditure is capital if it creates or enhances a

separate and distinct asset.

However, the existence of a

separate and distinct asset is not necessary in order to classify

7

Capitalization under sec. 263 takes precedence over current

deduction under sec. 162. Sec. 161 provides that the

deductibility of the items specified in part VI of the Code

(secs. 161 and following, relating to items deductible) is

"subject to the exceptions set forth in Part IX (sec. 261 and

following, relating to items not deductible)." Sec. 261

clarifies the point from the opposite perspective: "no deduction

shall in any case be allowed in respect of the items specified in

this part [IX, secs. 261 through 280G]." See INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992).

- 22 an expenditure as capital in nature.

Another consideration in

making such a determination is whether the expenditure provides

the taxpayer with long-term benefits.

Id. at 87.

Respondent contends that the expenditures petitioner

incurred to launch the 82 new RIC's must be treated as capital

expenditures.

Respondent argues that the costs resulted in the

acquisition of separate and distinct assets for petitioner.

Respondent also argues that the costs in issue resulted in a

significant future benefit for petitioner.

Separate and Distinct Assets

Both parties agree that if the costs of launching the 82

RIC's served to create separate and distinct assets, they must be

capitalized and cannot be deducted under section 162(a).

Petitioner argues that the expenditures at issue do not produce

separate and distinct assets because, among other things, the

management contracts with the RIC's are not transferable and no

exclusive rights are obtained in the launching process.

Petitioner points out that at the time a management contract is

entered into, the RIC is an empty shell with no shareholders and

no assets and that petitioner will earn revenue from the RIC only

if investors make the choice to invest in the RIC after the

management contract is entered into.

Petitioner contends that a

new RIC, and petitioner's management contract with a newly formed

- 23 RIC, has no market value unless and until investors place funds

in the RIC.8

Respondent contends that the expenditures served to create

82 separate and distinct mutual funds and allowed petitioner to

obtain ownership in, and control over, those mutual funds through

the execution of separate management contracts with each.

Respondent claims that the control, or right, represented by each

management contract represents a separate and distinct asset for

petitioner.

In examining the case law on this issue, we fail to find any

controlling definition of the term "separate and distinct

asset".9

Some courts have indicated that the existence of a

8

Petitioner also argues that only a small portion of the

costs at issue relates to the actual drafting of the management

contracts, the expenditures are not refundable, and the

expenditures were not incurred in connection with the purchase of

an intangible asset.

9

Respondent presented the expert testimony of R. Glenn

Hubbard, a professor in economics and finance. The main thrust

of Professor Hubbard's testimony is directed at the issue of

future benefit, rather than the identification of a separate and

distinct asset. Professor Hubbard states: "Economic analysis

indicates simply that a capital asset is one which produces

income and creates value beyond the period in which its cost is

incurred. Economically, identifying a separate and distinct

asset created by these expenditures is not required."

Nevertheless, Professor Hubbard opined that "In this case, mutual

fund management contracts are, of course, identifiable assets."

According to Professor Hubbard's economic analysis, there seems

to be no distinction between future benefit and the existence of

an asset. Although we do not necessarily disagree with Professor

Hubbard's statements as they relate to economics, his

determination of the existence of "separate and distinct assets"

is arguably inconsistent with the analysis contained in certain

(continued...)

- 24 separate and distinct asset depends upon whether the putative

asset has an ascertainable and measurable value; i.e., a fair

market value that is convertible to cash.

See NCNB Corp. v.

United States, 684 F.2d 285, 290 (4th Cir. 1982); Briarcliff

Candy Corp. v. Commissioner, 475 F.2d 775, 784-786 (2d Cir.

1973), revg. T.C. Memo. 1972-43.

On the other hand, the Supreme

Court has observed that grounding tax status on the existence of

an "asset" would be unlikely to produce a bright-line rule "given

that the notion of an 'asset' is itself flexible and amorphous."

INDOPCO, Inc. v. Commissioner, supra at 87 n.6.

Where the facts clearly show that expenditures produced a

separate and distinct asset, we shall not hesitate to hold that

such expenditures must be capitalized on that basis.

See PNC

Bancorp, Inc. v. Commissioner, 110 T.C. ___ (1998).

However,

based upon the evidence before us and the existing case law, we

believe that the inquiry in this case should focus on the

duration and extent of any benefits petitioner received from its

expenditures, rather than the existence of a separate and

distinct asset.

Future Benefit

9

(...continued)

previous court opinions. See Central Texas Sav. & Loan

Association v. United States, 731 F.2d 1181 (5th Cir. 1984); NCNB

Corp. v. United States, 684 F.2d 285 (4th Cir. 1982); Briarcliff

Candy Corp. v. Commissioner, 475 F.2d 775 (2d Cir. 1973), revg.

T.C. Memo. 1972-43.

- 25 In INDOPCO, Inc. v. Commissioner, supra at 87, the Supreme

Court rejected the argument that the creation or enhancement of a

separate and distinct asset is a prerequisite to capitalization,

explaining that "the creation of a separate and distinct asset

well may be a sufficient, but not a necessary, condition to

classification as a capital expenditure."

The Supreme Court

emphasized the importance of the realization of a significant

future benefit in determining whether an expense should be

capitalized, stating:

Although the mere presence of an incidental future

benefit--"some future aspect"--may not warrant

capitalization, a taxpayer's realization of benefits

beyond the year in which the expenditure is incurred is

undeniably important in determining whether the

appropriate tax treatment is immediate deduction or

capitalization. See United States v. Mississippi

Chemical Corp., 405 U.S. 298, 310 (1972) (expense that

"is of value in more than one taxable year" is a

nondeductible capital expenditure); Central Texas

Savings & Loan Assn. v. United States, 731 F.2d 1181,

1183 (CA5 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"). Indeed, the text of the Code's

capitalization provision, § 263(a)(1), which refers to

"permanent improvements or betterments," itself

envisions an inquiry into the duration and extent of

the benefits realized by the taxpayer. [INDOPCO, Inc.

v. Commissioner, 503 U.S. at 87-88.]

The Supreme Court went on to uphold the lower courts' rulings

that capitalization was required because the expenditures in

question provided the taxpayer with significant future benefits.

INDOPCO, Inc. v. Commissioner, supra at 87-89.

Therefore, an

- 26 appropriate inquiry in deciding issues of capitalization is "the

duration and extent of any benefits that * * * [the taxpayer]

received * * * [from its expenditures]".

Connecticut Mut. Life

Ins. Co. & Consol. Subs. v. Commissioner, 106 T.C. 445, 453

(1996).

Petitioner's RIC's were primarily organized as separate

series within Massachusetts business trusts.10

A Massachusetts

business trust, like any corporation organized under State law,

has perpetual existence.

perpetual existence.

Also, the series of a trust all have

Each RIC has a separate management contract

with petitioner that must be separately approved by the trustees

and the shareholders of each RIC.

No RIC managed by petitioner

has ever exercised its right of termination or otherwise failed

to renew a management contract with petitioner.

As a general

matter, a mutual fund board of trustees will terminate or fail to

renew a management contract only in rare circumstances involving

fraud or continued mismanagement.

As the RIC's founder, petitioner expects to be awarded the

initial contract to manage the new fund, as well as the annual

renewals of that contract for as long as the RIC exists.

petitioner's expectation was in fact realized.

Here,

The contract

between petitioner and the new RIC generally provides fund

management services in exchange for remuneration.

10

Both

Two of the RIC's created during the years in issue

involved the creation of new Massachusetts business trusts.

- 27 petitioner and the RIC realistically expect the relationship to

continue indefinitely and, thus, the relationship has an expected

life of more than 1 year.

Petitioner viewed the launching of a new RIC as a long-term

proposition and generally anticipated that it could take several

years for a new RIC to become successful.11

Mr. Roger Servison,

executive vice president in charge of new business development

and corporate policy for Fidelity Investments testified at trial

regarding when a RIC would be considered successful, stating:

11

Mr. Edward C. Johnson, III, the chief executive officer of

petitioner, testified:

A. * * * sometimes we bring out new funds, and they

can--the germination period can be an incredible period

of time. I mean I think in terms--we started talking

about Magellan Fund a little earlier--I think in terms

of Magellan Fund, I think we first brought it out in

1962, '63. Then, there were some taxes put on foreign

investment, so that slowed the fund up.

And then we went through the malaise of the early

seventies. I think by--by 1980, the fund had hardly

grown one single bit, and needless to say, it cost us a

lot of money. We felt an obligation to the

shareholders primarily who were in the fund.

I think we also had a faith that at some point in

time, that other investors would come along and then

something that had not produced an interest level by

the shareholders in the seventies--and the fund was

available to investors in the seventies--we had a faith

that sometime they--there would be an interest, but it

took--with that fund, it really took probably 20 years

before it what you might say made any particular

contribution to overhead.

- 28 A. We had some rules of thumb. Typically, we

felt that for an equity mutual fund to be a viable size

where it would make a profit, it had to be about 100

million or more. On a bond fund where we charge lower

fees, typically, we would look for a fund to be about

200 million, and on a money market fund, where there is

a lot of transaction activity and higher expense,

typically, you needed 500 million or more for a fund to

be profitable.

Q. And what happens if a fund doesn't reach that

size, what does Fidelity do with the fund in that case?

A. It depends. First of all, we tend to give

funds a long time to become successful because you

never know when you launch a fund when a particular

investment discipline may be in favor with investors.

Secondly, as I said, one of our objectives was to

have a very robust, comprehensive line of funds, so if

we felt ultimately, this investment concept might work,

we would tend to keep it open.

We would--sometimes we would merge funds that were

unsuccessful. We--we are very reluctant to close a

fund because typically, there are some investors in any

fund, and it's expensive to close a fund, and you run

the risk of creating bad will with those shareholders,

so--and it is not all that expensive to maintain a fund

once it's up and going.

In addition to potential future revenue from the individual

contracts with each new RIC, the new RIC's were expected to

produce synergistic benefits to petitioner's entire family of

funds.

One of the reasons for launching a new RIC was to provide

existing and future investors greater investment options so that

these investors would continue, and increase, their investment in

petitioner's family of funds.

Having a larger number of

investment vehicles from which to choose allows the investor to

shift investment from one fund to another within the same fund

- 29 family without having to pay a fee, or "load".

This process of

moving an investment from one fund to another fund within the

same family with no charge is called "an exchange privilege".

In

addition, an investor with all his portfolio in a single family

of funds receives a report of his entire portfolio on a single

statement from a single adviser.

Thus, having numerous funds

with different investment objectives is attractive to both

existing and future investors which, in turn, increases the

likelihood of additional assets invested in the fund family and,

because petitioner's fees are based in large part on the amount

of assets under management, ultimately more revenue for

petitioner from the other RIC's it manages as well.12

Most of the RIC's launched during the years in issue still

exist in their original form.

As of 1995, they contained more

than $109 billion in investments and continue to be a source of

substantial management fees for petitioner.

Petitioner expected

to realize, and indeed has realized, significant economic and

synergistic benefits from its long-term relationships with the

RIC's created during the years in issue.

The Court of Appeals for the First Circuit, to which this

case is appealable, has stated:

12

In their briefs, the parties disagree about whether

petitioner's "customers" are the RIC's (respondent's position) or

the investors in the RIC's (petitioner's position). We think

there is some truth in both positions. However, we do not find

either perspective determinative of whether capitalization is

required.

- 30 a capital expenditure is one that secures an advantage

to the taxpayer which has a life of more than one year,

* * * and that the taxpayer must acquire something of

permanent use or value in his business * * * It is not

necessary that the taxpayer acquire ownership in a new

asset, but merely that he may reasonably anticipate a

gain that is more or less permanent. * * * [Fall

River Gas Appliance Co. v. Commissioner, 349 F.2d 515,

516-517 (1st Cir. 1965), affg. 42 T.C. 850 (1964);

citations omitted.]

In Fall River Gas Appliance Co. v. Commissioner, supra, the

taxpayer, a subsidiary of a seller and distributor of natural

gas, made expenditures consisting of installation costs for

leased gas appliances, primarily water heaters and conversion

burners for furnaces.

Appliances were leased for 1 year

initially, and conversion burners were removable at the will of

the customer upon 24-hour notice.

It was anticipated that the

overall duration of the leases would result in rental income upon

the appliances and greater consumption of gas which would benefit

the taxpayer.

The court stated:

the taxpayer took a considered risk in the installation

of a facility upon the premises of another in

anticipation of an economic benefit flowing from the

existence of the facility over an indeterminable length

of time. * * * the totality of expenditure was made in

anticipation of a continuing economic benefit over a

period of years and such is indicative of a capital

expense. The record of gas sales and leased

installations, although certainly not compelling in

such regard, lends some strength to the conclusion that

anticipation has become fact. [Id. at 517; emphasis

added.]

- 31 Like the taxpayer in Fall River Gas Appliance Co., petitioner

believed that by launching the RIC's it would derive a continuing

economic benefit.13

The expenditures at issue bear other indicia of capital

expenditures.

The right to market the investment concept,

obtained through the process of executing the contract with the

individual RIC14 and filing with the SEC and individual States,

is similar to the rights obtained by the taxpayers in P. Liedtka

Trucking, Inc. v. Commissioner, 63 T.C. 547 (1975), and Surety

Ins. Co. v. Commissioner, T.C. Memo. 1980-70.

In P. Liedtka

Trucking, Inc. v. Commissioner, supra, the taxpayer, a trucking

business, incurred legal fees in connection with the acquisition

of a Certificate of Public Convenience and Necessity issued by

the Interstate Commerce Commission (ICC), which was required in

order to use several routes between various points in New York,

New Jersey, and Pennsylvania.

as an ordinary expense.

The taxpayer deducted these costs

We held that the costs incurred in

13

See Union Mut. Life Ins. Co. v. United States, 570 F.2d

382, 392 (1st Cir. 1978) ("expenditures made with the

contemplation that they will result in the creation of a capital

asset cannot be deducted" even though those expenditures were

found to be regularly occurring and did not actually result in

the acquisition of an asset.)

14

On brief, petitioner states: "The [management] contract

provides the petitioner with nothing more than an opportunity to

try to attract investment to the fund." Petitioner further

states: "The use of the mutual fund as an intermediary mechanism

between an advisor, such as the petitioner, and individual

investors is dictated by the practicalities of the market."

- 32 obtaining these operating rights constituted a capital

expenditure, stating:

The acquisition of these operating rights would

enable the petitioner to use several routes between

various points in New York, New Jersey, and

Pennsylvania. This authority constitutes an intangible

right to operate between these points and a permanent

betterment to the petitioner's existing business. The

ICC, in granting petitioner the permanent transfer,

conditioned it only on petitioner's ability to provide

the public continuous and adequate service. There is

no indication in the record of the ICC's tendency to

suspend, change, or revoke this authority. We can only

assume then that the eventual final approval by the ICC

that transferred these rights to petitioner's name was

for an indefinite period. [P. Liedtka Trucking, Inc.

v. Commissioner, supra at 555.]

In Surety Ins. Co. v. Commissioner, supra, the taxpayer

incurred costs in obtaining certificates of authority to conduct

its business as a surety in several States.

We held that such

expenditures were directly related to the acquisition of the

right to conduct the taxpayer's business in these States.

We

concluded that

a company initially granted certificates of authority

will not be denied renewal unless the company fails to

comply with the regulatory scheme. As such, the

license is realistically not intended nor limited to a

single year where petitioner complies with state law.

See P. Liedtka Trucking, Inc. v. Commissioner, 63 T.C.

547, 555 (1975). Accordingly, we conclude that such

expenditures may not be deducted as business expenses

but must be treated as capital expenditures. [Id.; fn.

ref. omitted.]

- 33 The costs at issue consist of expenditures to develop the

concept for each of the 82 new RIC's, to develop the initial

marketing plan, to draft the management contract, to form the

RIC's, to obtain the board of trustees' approval of the contract,

and to register the new RIC with the SEC and the various States

in which the RIC would be marketed.

These expenditures secured

for petitioner the right to market the particular investment

concept of each RIC.

Without the approval of the board of

trustees, the resulting contract with the RIC, and the necessary

filings with the SEC and the individual States, petitioner could

not offer shares of the investment vehicle to its investors.

Thus, by incurring the costs at issue, petitioner secured a

significant long-term benefit.

The expenditures in issue are also similar to organization

costs, which are generally considered capital expenditures.

Typically, expenditures incurred in connection with organizing,

recapitalizing, or merging a business are not currently

deductible.

See INDOPCO, Inc. v. Commissioner, 503 U.S. at 89-

90; E.I. du Pont de Nemours & Co. v. United States, 432 F.2d

1052, 1058 (3d Cir. 1970); Skaggs Cos. v. Commissioner, 59 T.C.

201, 206 (1972).

In launching a new RIC, petitioner prepares memoranda for

the board of trustees, prepares a prospectus and other

applications for the SEC and State approvals, registers each RIC,

and prepares the governing contract.

Petitioner then acquires an

- 34 ownership interest in the newly formed RIC by paying between $1

and $3 million for stock and, as sole shareholder, votes to

approve the initial management contract.

These costs are similar

to organizational expenditures of a corporation15 or partnership

15

Sec. 1.248-1(b)(2), Income Tax Regs., provides the

following examples of corporate organizational expenditures:

legal services incident to the organization of the

corporation, such as drafting the corporate charter,

by-laws, minutes or organizational meetings, terms of

original stock certificates, and the like; necessary

accounting services; expenses of temporary directors

and of organizational meetings of directors or

stockholders; and fees paid to State of incorporation.

- 35 and to syndication expenses,16 none of which are currently

deductible.

Secs. 248(a); 709(a).

Petitioner argues that the costs associated with these

activities are not organization costs with regard to petitioner

because the costs do not relate to its capital structure and were

incurred solely to maintain and promote its investment management

business.

Nevertheless, much like the reorganization

expenditures in E.I. du Pont de Nemours & Co. v. United States,

supra, we find that the costs incurred by petitioner here

"resulted in a benefit to the taxpayer which could be expected to

16

Sec. 1.709-2(a), Income Tax Regs., provides the following

examples of partnership organizational expenditures:

Legal fees for services incident to the organization of

the partnership, such as negotiation and preparation of

a partnership agreement; accounting fees for services

incident to the organization of the partnership; and

filing fees. * * *

Sec. 1.709-2(b), Income Tax Regs., defines syndication

expenses as follows:

Syndication expenses are expenses connected with the

issuing and marketing of interests in the partnership.

Examples of syndication expenses are brokerage fees;

registration fees; legal fees of the underwriter or

placement agent and the issuer (the general partner or

the partnership) for securities advice and for advice

pertaining to the adequacy of tax disclosures in the

prospectus or placement memorandum for securities law

purposes; accounting fees for preparation of

representations to be included in the offering

materials; and printing costs of the prospectus,

placement memorandum, and other selling and promotional

material. * * *

- 36 produce returns for many years in the future" and, therefore, are

not deductible.

Id. at 1059.

Petitioner acknowledges that the expenditures it incurred in

launching the new RIC's may result in the future benefit of

preserving, promoting, and expanding its investment management

business.

However, petitioner contends that this type of future

benefit has never been held to require capitalization.

Notwithstanding INDOPCO, Inc. v. Commissioner, supra, petitioner

argues that there are numerous court decisions which support the

principle that the costs of expanding or preserving an existing

business are deductible expenses rather than capital

expenditures.

E.g., NCNB Corp. v. United States, 684 F.2d 285

(4th Cir. 1982); Colorado Springs Natl. Bank v. United States,

505 F.2d 1185 (10th Cir. 1974); Briarcliff Candy Corp. v.

Commissioner, 475 F.2d 775 (2d Cir. 1973), revg. T.C. Memo. 197243; Equitable Life Ins. Co. v. Commissioner, T.C. Memo. 1977-299.

In Briarcliff Candy Corp. v. Commissioner, T.C. Memo. 197243, the taxpayer, an urban candy manufacturer, incurred certain

expenses to maintain its dwindling market share by forming a

separate franchise division within the company to obtain display

contracts with drugstores in suburban locations.

We held that

the expenditures incurred in obtaining these contracts were

capital expenditures, stating:

Regardless of whether amounts expended by petitioner

are designated as promotional expenses, advertising

- 37 expenses or selling expenses, it is apparent that

petitioner obtained contracts which provided a channel

of marketing distribution which would be a benefit to

petitioner in future years. The benefits derived from

contracts with the drugstore outlets were not merely

incidental to income in future years but were

instrumental in the production of such income.

* * * [Id.]

The Court of Appeals for the Second Circuit reversed, finding

that the franchising costs did not enhance or create a "separate

and distinct additional asset."

The court held that the costs

were incurred in an effort by the taxpayer to maintain its

current business profits and customers and were therefore

currently deductible.

Briarcliff Candy Corp. v. Commissioner,

475 F.2d at 786-787.

The Court of Appeals' reliance on a

"separate and distinct asset" test was based upon its reading of

Commissioner v. Lincoln Sav. & Loan Association, 403 U.S. 345

(1971), which the Court of Appeals stated had "brought about a

radical shift in emphasis" that required expenditures to be

capitalized only where the expenditures created or enhanced a

separate and distinct asset.

Commissioner, 475 F.2d at 782.

Briarcliff Candy Corp. v.

In reaching its conclusion that

the expenses were deductible, the Court of Appeals disregarded

the resulting future benefits obtained by the taxpayer.

The Court of Appeals for the Tenth Circuit in Colorado

Springs Natl. Bank v. United States, supra, expanded on

Briarcliff Candy Corp. v. Commissioner, supra, in holding that

the costs of establishing credit card operations were deductible

- 38 by banks since a credit card operation was merely a new method of

operating an old business.

The Court of Appeals reasoned that,

since the taxpayer did not acquire a separate and distinct asset

from the expenditures, capitalization was not required.

In NCNB Corp. v. United States, supra, the Court of Appeals

for the Fourth Circuit held that costs incurred in developing

bank branches (such as expansion plans, feasibility studies, and

regulatory applications) were immediately deductible.

The court

cited Commissioner v. Lincoln Sav. & Loan Association, supra, in

determining that the expenditures were currently deductible

because they did not create or enhance separate and identifiable

assets.

NCNB Corp. v. United States, supra at 294.

Although the

court recognized that a future benefit is a factor to be

considered, the language of the decision clearly emphasized the

lack of a separate and distinct additional asset in arriving at

its conclusion:

The money spent or obligated for metro studies,

feasibility studies, and applications to the

Comptroller of the Currency, it seems to us, adds

nothing to the value of a bank's assets which can be so

definitely ascertained that it must be capitalized.

Certainly no "separate and distinct additional asset"

is created. While the benefit of all of these classes

of expenses may or may not endure for more than one

year, that is but one factor to be considered. The

branch has no existence separate and apart from the

parent bank; as a branch bank, it is not readily

salable and has no market value other than the real

estate which it occupies and the tangible equipment

therein. [Id. at 293.]

- 39 Petitioner also relies heavily on a Memorandum Opinion of

this Court, Equitable Life Ins. Co. v. Commissioner, T.C. Memo.

1977-299.

In Equitable Life Ins. Co. v. Commissioner, supra, we

held that expenses incurred by an insurance company in

registering certain variable annuity contracts under the

Securities Act of 1933 and registering as a management investment

company pursuant to the provisions of the Investment Company Act

of 1940 were deductible.

In reaching this conclusion, we

emphasized that the registration expenses were "normal, usual and

customary in the day-to-day operations of the insurance

business."

We also found that the expenses were not incurred in

the acquisition of a capital asset.

However, we did not analyze,

nor did we discuss, whether the expenses in question produced a

significant long-term benefit for the taxpayer.

The aforementioned cases upon which petitioner relies were

decided prior to the Supreme Court's decision in INDOPCO, Inc. v.

Commissioner, 503 U.S. 79 (1992).

In fact, the Supreme Court

granted certiorari in INDOPCO, Inc. v. Commissioner, supra at 83

n.3, to resolve a perceived conflict among various Courts of

Appeals and specifically cited NCNB Corp. v. United States,

supra, and Briarcliff Candy Corp. v. Commissioner, supra.

In

INDOPCO, Inc. v. Commissioner, 503 U.S. at 90, the Supreme Court

held that investment banking fees and other fees paid by the

taxpayer in connection with a friendly acquisition had to be

capitalized because they provided significant long-term benefits

- 40 to the taxpayer's existing business.

The taxpayer, relying on

Commissioner v. Lincoln Sav. & Loan Association, supra, argued

that these costs did not have to be capitalized because no

separate and distinct asset was created.

The Supreme Court

disagreed, stating:

Lincoln Savings stands for the simple proposition

that a taxpayer's expenditure that "serves to create or

enhance * * * a separate and distinct" asset should be

capitalized under § 263. It by no means follows,

however, that only expenditures that create or enhance

separate and distinct assets are to be capitalized

under § 263. * * * In short, Lincoln Savings holds

that the creation of a separate and distinct asset well

may be a sufficient, but not a necessary, condition to

classification as a capital expenditure. * * *

[INDOPCO, Inc. v. Commissioner, supra at 86-87.]

Emphasizing the importance of the realization of a significant

future benefit in determining whether an expenditure should be

capitalized, the Supreme Court upheld the lower courts' findings

that the expenditures produced significant future benefits that

required the costs to be capitalized.17

INDOPCO, Inc. v.

Commissioner, supra at 90; Connecticut Mut. Life Ins. Co. v.

Commissioner, 106 T.C. at 453.

Thus, whether an expenditure

produces a significant future benefit beyond the current taxable

year remains a prominent, indeed a predominant, characteristic of

an expenditure that must be capitalized.

17

The Supreme Court found that the lower courts' findings of

fact were amply supported by the record. INDOPCO, Inc. v.

Commissioner, 503 U.S. at 88.

- 41 We recognize that capitalization is not required for every

cost that produces any future benefit.

However, we do not agree

with petitioner's proposition that the claimed purpose of the

expenditures--to protect, promote, or expand its existing

business--is controlling.

Rather than attempting to assign the

expenditures to a specific classification, such as expansion

costs, we believe that the more important question is whether the

expenditures in issue provide a significant future benefit to

petitioner.

Finally, petitioner argues that the legislative history of

section 195 supports its position that the expenditures here do

not create the "type" of future benefit that must be capitalized.

Petitioner contends that Congress explicitly recognized the

current deductibility of the costs of expanding an existing trade

or business when it enacted section 195 to deal with the costs of

starting a new trade or business.

Section 195 was enacted by the

Miscellaneous Revenue Act of 1980, Pub. L. 96-605, sec. 102(a),

94 Stat. 3522, and was amended by the Deficit Reduction Act of

1984, Pub. L. 98-369, sec. 94(a), 98 Stat. 614.

Section 195, as

originally enacted in 1980, defined "startup expenditure" to mean

any amount

(1) paid or incurred in connection with-(A) investigating the creation or acquisition of an

active trade or business, or

(B) creating an active trade or business, and

- 42 (2) which, if paid or incurred in connection with the

expansion of an existing trade or business (in the same

field as the trade or business referred to in paragraph

(1)), would be allowable as a deduction for the taxable year

in which paid or incurred.[18] [Emphasis added.]

Petitioner claims that the legislative history accompanying the

1980 enactment of section 195 confirms that Congress explicitly

recognized that business expansion costs are currently

deductible:

In the case of an existing business, eligible

startup expenditures do not include deductible ordinary

and necessary business expenses paid or incurred in

connection with an expansion of the business. As under

present law, these expenses will continue to be

currently deductible. * * * [H. Rept. 96-1278, at 11

(1980), 1980-2 C.B. 709, 712; emphasis added.]

18

Sec. 195(c), as amended, defines startup expenditure to

mean any amount-(A) paid or incurred in connection with-(i) investigating the creation or acquisition of an

active trade or business, or

(ii) creating an active trade or business, or

(iii) any activity engaged in for profit and for the

production of income before the day on which the active

trade or business begins, in anticipation of such

activity becoming an active trade or business, and

(B) which, if paid or incurred in connection with the

operation of an existing active trade or business (in the

same field as the trade or business referred to in

subparagraph (A)), would be allowable as a deduction for the

taxable year in which paid or incurred.

- 43 Petitioner interprets this language to mean that Congress

expected and directed that all expansion costs for an existing

trade or business are currently deductible.

We do not agree with

petitioner's reading of this legislative history.

Congress was

simply recognizing that if an expenditure was currently

deductible, section 195 did not change the characterization of

the expenditure if it was paid or incurred in connection with the

expansion of an existing business.

Thus, Congress was

distinguishing these expenditures from those paid or incurred in

the creation or acquisition of a new trade or business to which

section 195 did apply.

H. Rept. 96-1278, supra at 11, 1980-2

C.B. at 712-713 ("The determination of whether there is an

expansion of an existing trade or business or a creation or

acquisition of a new trade or business is to be based on the

facts and circumstances of each case as under present law.")

In NCNB Corp. v. United States, 684 F.2d at 291, the court

found the enactment of section 195 was "another indication that

the expenditures in question [were] current expenses rather than

capital costs".

Relying on the definition of "investigatory

- 44 costs" contained in the House report accompanying section 195,19

the Court of Appeals for the Fourth Circuit determined:

Congress is thus under the impression that expenditures

for market studies and feasibility studies, as at issue

here, are fully deductible if incurred by an existing

business undergoing expansion. An interpretation by us

to the contrary would render § 195 meaningless for it

would obliterate the reference point in the statute-"the expansion of an existing trade or business."

[NCNB Corp. v. United States, supra at 291.]

Although, the court found that the investigatory expenditures in

question in that case did not require capitalization, we find

that neither that holding, nor the statutory language of section

195, requires that every expenditure incurred in any business

expansion is to be currently deductible.

Under petitioner's reasoning, any expenditure incurred in

the expansion of an existing business would be deductible.

Obviously this is not a proper interpretation of the law.

Section 195 allows taxpayers to amortize "startup" expenses only

when such expenses, "if paid or incurred in connection with the

19

As an example of expenditures, which would be allowable

deductions for an existing business, the House report that

accompanied sec. 195 explained:

Under the provision, eligible expenses consist of

investigatory costs incurred in reviewing a prospective

business prior to reaching a final decision to acquire

or to enter that business. These costs include

expenses incurred for the analysis or survey of

potential markets, products, labor supply,

transportation facilities, etc. * * * [H. Rept. 961278, at 10 (1980), 1980-2 C.B. 709, 712.]

- 45 operation of an existing active trade or business * * * would be

allowable as a deduction for the taxable year in which paid or

incurred."

Sec. 195(c)(1)(B).

Section 195 did not create a new

class of deductible expenditures for existing businesses.

Rather, in order to qualify under section 195(c)(1)(B), an

expenditure must be one that would have been allowable as a

deduction by an existing trade or business when it was paid or

incurred.

See Duecaster v. Commissioner, T.C. Memo. 1990-518

("Nothing in the statute or the legislative history suggests that

section 195 was intended to create a deduction, by way of

amortization, in respect of an item which would not, in any

event, have been deductible under prior law.").20

20

As Judge Murnaghan, who wrote the panel opinion in NCNB

Corp. v. United States, supra at 295, stated in his dissent to

the en banc majority opinion:

It requires a giant, and unjustified leap, to

derive from the justification set out in the

legislative history any support for the proposition

that all investigatory costs are automatically

deductible, irrespective of length of life. Eligible

expenses under IRC § 195 include "investigatory costs

incurred in reviewing a prospective business prior to

reaching a final decision to acquire or to enter that

business." S. Rep. No. 1036, supra, at 7301. But that

is only one of the qualifications. In addition, to

qualify as an eligible expense, an expenditure "must be

one which would be allowable as a deduction for the

taxable year in which it is paid or incurred if it were

paid or incurred in connection with the expansion of an

existing trade or business." Id.

Thus, the legislative history does not purport to

say that all investigatory costs are deductible. To

(continued...)

- 46 We have found that petitioner contemplated and received

significant, long-term benefits as a result of the expenditures

it incurred in the creation of 82 RIC's during the years in

issue.

The future benefits derived from these RIC's were not

merely incidental.

Accordingly, we hold that these expenditures

do not qualify for deduction as "ordinary and necessary" business

expenses under section 162(a).

Amortization

Having concluded that the amounts expended by petitioner

were in the nature of capital expenditures, we must decide

whether petitioner is entitled to a deduction for the

amortization of such costs.

Section 167(a) allows taxpayers to

take a depreciation deduction for property used in a trade or

business.

Section 167 is not limited in its application to

tangible property, but is also applicable to intangibles.

Section 1.167(a)-(3), Income Tax Reg., provides:

If an intangible asset is known from experience or

other factors to be of use in the business or in the

production of income for only a limited period, the

20

(...continued)

the contrary, it explicitly limits its application

solely to those investigatory costs which are

deductible in nature. The implication is inescapable

that there are other investigatory costs which are not

deductible, i.e. are to be capitalized. Consequently,

we are brought straight back to the question we started

with: In the case of each expenditure, was it

deductible, or capitalizable? * * *

- 47 length of which can be estimated with reasonable

accuracy, such an intangible asset may be the subject

of a depreciation allowance. Examples are patents and

copyrights. An intangible asset, the useful life of

which is not limited, is not subject to the allowance

for depreciation. No allowance will be permitted

merely because, in the unsupported opinion of the

taxpayer, the intangible asset has a limited useful

life. * * *

The standard for deciding whether an intangible is depreciable

under section 167 was enunciated in Newark Morning Ledger Co. v.

United States, 507 U.S. 546, 566 (1993), as follows:

a taxpayer [must] prove with reasonable accuracy that

an asset used in the trade or business or held for the

production of income has a value that wastes over an

ascertainable period of time * * *

The availability of a depreciation deduction is primarily a

question of fact, id. at 560, on which the taxpayer bears the

burden of proof.

Id. at 566.

Petitioner contends (in the alternative) that the

expenditures it incurred in launching the RIC's should be

amortized over an average useful life of 2.2 years.

Petitioner

argues that the recovery period of 2.2 years is determined by the

average life of initial investments in a new RIC and is similar

to the recovery of bank acquisition expenditures allocable to the

deposits in the acquired bank over the period in which these

deposits can be shown to decline in value to the acquirer.

See

Citizens & S. Corp. v. Commissioner, 91 T.C. 463 (1988), affd.

919 F.2d 1492 (11th Cir. 1990).

- 48 Petitioner conducted studies to determine the useful life of

a new RIC based solely on the estimated duration of the initial

investments in a new RIC from customers who invested during the

first 6 months of the existence of the RIC.

Petitioner argues

that the reason a 6-month time period was selected for this study

is that during the taxable years in issue, current performance

information about a new mutual fund was not available for the

first 6 months after a new RIC's introduction.

Thus, petitioner

posits, any investors who decided to invest in a new mutual fund

during the first 6 months after its introduction would

necessarily have based their decision on factors other than

current performance.

In petitioner's view, these are the only

investors that conceivably could be attributed to the actions

undertaken by petitioner during the period prior to the launch

date of a new RIC.

Petitioner provides no support for its assumption that the

benefits of the expenditures it incurred were limited solely to

initial investors.21

In fact, we have found that the benefits

received from the RIC launching costs were significant and long

lasting and certainly not limited to initial investments.

21

Petitioner submitted the expert report of Fred C.

Lindgren, an actuary with Coopers & Lybrand L.L.P. Although Mr.

Lindgren's report set forth in great detail the methodology and

statistics used to determine the average useful life of these

initial investments, he relied upon petitioner's request to focus

on investments made in the first 6 months rather than his own

independent analysis.

- 49 Accordingly, we find no reason to limit the analysis of a new

RIC's useful life to the duration of investments invested in the

first 6 months of a RIC's existence.

Furthermore, the evidence

fails to reveal any basis for determining an alternate useful

life.

Therefore, we find that petitioner has failed to meet its

burden of establishing a limited life for the future benefits

obtained from the expenditures it incurred during the years in

issue.

Decision will be entered

under Rule 155.