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greater than that allowed by respondent.9 The parties agree that
if the Reserve Facility and/or the Mezzanine System, or any part
thereof, are determined to be "section 38 property", as defined
in section 48(a)(1), then petitioner is entitled to: (1) An ITC
with respect to such section 38 property (or part thereof); (2) a
5-year depreciation schedule under section 168(b)(1) with respect
to such section 38 property (or part thereof); and (3) a
deduction under section 163 for interest accrued during the
construction period with respect to such section 38 property (or
part thereof). The parties also agree that if petitioner is not
entitled to the ITC's, then it is entitled to: (1) Amortize
interest accrued during the construction period over a 10-year
period under section 189, and (2) depreciate the property (or
part thereof) using a 19-year schedule.
Petitioner bears the burden of proving its entitlement to
the claimed credit. See Rule 142(a); Uecker v. Commissioner, 81
T.C. 983, 998 (1983), affd. per curiam on another issue 766 F.2d
909 (5th Cir. 1985).
To qualify for an ITC, property must qualify as section 38
property, which is defined in section 48(a)(1) as follows:
9The investment tax credit was repealed by the Tax Reform
Act of 1986, Pub. L. 99-514, sec. 211(a), 100 Stat. 2085, 2166,
effective (subject to transition rules) for property placed in
service after Dec. 31, 1985. The property's status as transition
property is not in dispute.
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