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a 'facility' within the meaning of section 274(a)(1)(B)", but
rather should be considered to be an activity under section
274(a)(1)(A). Id. at 1564. We recognized that to a certain
degree the distinctions between a facility and an activity were
sometimes difficult to draw. Nonetheless we reasoned that
petitioner has exclusive right to use the hunting area
for hunting, fishing, and other recreation.
Petitioner's exclusive lease of the hunting rights
grants to petitioner, on prior notice, unfettered
access to the hunting area * * *. The hunting area is
where the recreation takes place. During petitioner's
recreation in the hunting area, petitioner has
exclusive occupancy of the hunting area. Therefore,
the hunting area is a facility used in connection with
entertainment * * * [Id. at 1566; fn. ref. omitted.]
Petitioner misconceives the parameters of the exclusive use
discussion in Harrigan. The exclusivity language refers to the
right of the lessee to bar the general public, and not a limited
number of persons covered by a lease, from participating in the
recreation. Indeed, in Harrigan the lease provided that members
of the lessor's family could hunt the property. This is also
apparent from the example in the legislative history, referred to
in Harrigan, in which a deduction is allowed for an expenditure
for 1 day at a commercial shooting preserve that is opened to the
public. See H. Conf. Rept. 95-1800 (1978), 1978-3 C.B. (Vol. 1)
585.5 In that example the taxpayer had no control over the use
5 H. Conf. Rept. 95-1800, at 251 (1978), 1978-3 C.B. (Vol.
1) 521, 585, states:
(continued...)
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