William H. Cosby, Jr., and Camille O. Cosby, Appellees, v. the United States, Appellant.jack Barry Productions, Inc., Appellee, v. the United States, Appellant, 795 F.2d 999 (Fed. Cir. 1986)

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U.S. Court of Appeals for the Federal Circuit - 795 F.2d 999 (Fed. Cir. 1986)

July 21, 1986

Appealed from U.S. Claims Court; Alex Kozinski, Chief Judge.

Elaine F. Ferris, of the Tax Div., Dept. of Justice, Washington, D.C., argued, for appellant. With her on brief, were Roger M. Olsen, Acting Asst. Atty. Gen., Michael L. Paup and Richard Farber, of the Tax Div., Dept. of Justice, Washington, D.C.

Togo D. West, of Patterson, Belknap, Webb & Tyler, Washington, D.C., argued for appellees Cosby. With him on brief, was Renee L. Szybala, of Patterson, Belknap, Webb & Tyler.

Sheldon S. Cohen, of Morgan, Lewis & Bockius, Washington, D.C., argued, for appellee Barry. With him on brief were Roger A. Pies and Howard J. Hoffman, of Morgan, Lewis & Bockius.

Before NIES, BISSELL, Circuit Judges, and SWYGERT, Senior Circuit Judge.* 

BISSELL, Circuit Judge.

These appeals1  challenge the Claims Court, Kozinski, C.J., decision that tapes of The New Bill Cosby Show and The Jokers' Wild qualify for investment tax credit (ITC or credit) under the Internal Revenue Code, 26 U.S.C. § 48(k) (1982), and that the categorical exclusion of variety shows and game shows as "qualified" films contained in Treasury Regulations Sec. 1.48-8(a) (3) (iii) (1979), is invalid. Cosby v. United States, 8 Cl.Ct. 428 (1985). We affirm.

In addition to the Claims Court decision permitting the ITC for the Cosby Show and The Joker's Wild program, other courts in lengthy and well-reasoned opinions have construed section 48(k) as permitting ITC for another game show, films concerning a sporting event, recordings of rock musical performances, and another variety show and have held the regulation invalid to the extent of its categorical exclusion of the shows at issue. Apis Productions, Inc. v. Commissioner, 86 T.C. 69 (1986) (held variety show exclusion in Treas.Reg. Sec. 1.48-8(a) (3) (iii) (1979) invalid); Goodson-Todman Enterprises, Ltd. v. Commissioner, 84 T.C. 255 (1985) (game show--To Tell The Truth), aff'd and modified, 784 F.2d 66 (2d Cir. 1985) (game show exclusion in Treas.Reg. Sec. 1.48-8(a) (3) (iii) (1979) invalid); Budget Films, Inc. v. Commissioner, 85 T.C. 114 (1985) (film footage of bullfights and Beatles' concerts were eligible for the ITC).

The above cited decisions provide exhaustive analysis concerning the invalidity of the regulations at issue in this case. Consequently, we see little necessity for further exposition and affirm on the basis of the Claims Court opinion.



The Honorable Luther M. Swygert, U.S. Court of Appeals for the Seventh Circuit, sitting by designation


These appeals were not consolidated. Appellees in this court, plaintiffs in the Claims Court, are represented by separate counsel and advance different theories on statutory interpretation. Nevertheless, because the issues presented are closely analagous issues, and the cases were heard in the Claims Court and argued on appeal in tandem, we issue one opinion incorporating our decision in each case