Norman J. Fredkin and Annie G. Fredkin v. Commissioner of Internal Revenue

BREYER, Circuit Judge.

In 1977 taxpayers Norman and Annie Fredkin subleased the right to mine diamonds in Namibia from a Dutch company called Imperial Finance, N.V. (“Imperial”). Their sublease required them to pay Imperial a minimum of $50,000 each year whether or not anyone mined any diamonds. The sublease referred to this payment as a “minimum royalty.” And, the sublease allowed the Fredkins to deduct this advance “minimum royalty” payment from the royalties they would otherwise owe once diamonds were found and mined.

The Fredkins want to deduct their advance minimum payments from their…