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- NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
- being done in connection with this case, at the time the opinion is issued.
- The syllabus constitutes no part of the opinion of the Court but has been
- prepared by the Reporter of Decisions for the convenience of the reader.
- See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
-
- SUPREME COURT OF THE UNITED STATES
-
- Syllabus
-
- NEWARK MORNING LEDGER CO., as successor to
- THE HERALD CO. v. UNITED STATES
- certiorari to the united states court of appeals for
- the third circuit
- No. 91-1135. Argued November 10, 1992-Decided April 20, 1993
-
- Petitioner newspaper publisher is the successor to The Herald
- Company. When, in 1976, Herald purchased substantially all the
- outstanding shares of Booth Newspapers, Inc., it allocated its
- adjusted income tax basis in the Booth shares among the assets it
- acquired in its merger with Booth. Among other things, it allocated
- $67.8 million to an intangible asset denominated ``paid subscribers,''
- a figure that was petitioner's estimate of future profits to be derived
- from identified subscribers to Booth's eight newspapers on the date of
- merger. On its federal income tax returns for 1977-1980, Herald
- claimed depreciation deductions for the $67.8 million, which were
- disallowed by the Internal Revenue Service (IRS) on the ground that
- the concept of ``paid subscribers'' was indistinguishable from goodwill
- and, therefore, was nondepreciable. Herald paid the taxes, and
- petitioner filed refund claims and ultimately brought suit in the
- District Court to recover taxes and interest paid. At trial, the
- Government did not contest petitioner's expert evidence on the
- methodology used to calculate its figure and stipulated to the useful
- life of ``paid subscribers'' for each newspaper. Instead, it estimated
- the asset's value at $3 million, the cost of generating new
- subscriptions, and its principal argument remained that the asset
- was indistinguishable from goodwill. The court ruled in petitioner's
- favor, finding that the asset was not self-regenerating-i.e., it had a
- limited useful life, the duration of which could be calculated with
- reasonable accuracy-that petitioner properly calculated its value,
- and that it was separate and distinct from goodwill. The Court of
- Appeals reversed, holding that even though the asset may have a
- limited useful life that can be ascertained with reasonable accuracy,
- its value is not separate and distinct from goodwill.
- Held:
- 1. A taxpayer able to prove that a particular asset can be valued
- and that it has a limited useful life may depreciate its value over its
- useful life regardless of how much the asset appears to reflect the
- expectancy of continued patronage. Pp. 6-19.
- (a) While the depreciation allowance of 167(a) of the Internal
- Revenue Code applies to intangible assets, the IRS has consistently
- taken the position that goodwill is nondepreciable. Since the value of
- customer-based intangibles, such as customer and subscriber lists,
- obviously depends on continued and voluntary customer patronage,
- the question has been whether these intangibles can be depreciated
- notwithstanding their relationship to such patronage. The ``mass
- asset'' rule that courts often resort to in considering this question
- prohibits depreciation when the assets constitute self-regenerating
- assets that may change but never waste. Pp. 6-13.
- (b) Whether or not taxpayers have been successful in separating
- depreciable intangible assets from goodwill in any particular case is a
- question of fact. The question is not whether an asset falls within the
- core of the concept of goodwill, but whether it is capable of being
- valued and whether that value diminishes over time. Pp. 13-19.
- 2. Petitioner has borne successfully its substantial burden of
- proving that ``paid subscribers'' constitutes an intangible asset with
- an ascertainable value and a limited useful life, the duration of which
- can be ascertained with reasonable accuracy. It has proved that the
- asset is not self-regenerating but rather wastes as a finite number of
- component subscriptions are canceled over a reasonably predictable
- period of time. The Government presented no evidence to refute the
- methodology petitioner used to estimate the asset's fair market value,
- and the uncontroverted evidence presented at trial revealed that
- ``paid subscribers'' had substantial value over and above that of a
- mere list of customers, as it was mistakenly characterized by the
- Government. Pp. 20-24.
- 945 F. 2d 555, reversed and remanded.
- Blackmun, J., delivered the opinion of the Court, in which Stevens,
- O'Connor, Kennedy, and Thomas, JJ., joined. Souter, J., filed a
- dissenting opinion, in which Rehnquist, C. J., and White and Scalia,
- JJ., joined.
-