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the TRA 1986, only uncertainty is required. The use of the word
substantial here requires a further step in the context of the
development of internal use software. As in the case of the
innovativeness test, we believe the significant economic risk test
requires a higher threshold of technological advancement in the
development of internal use software than in other fields.
G. The Commercial Availability Test
The commercial availability test requires that the software
not be commercially available for use by the taxpayer "as where the
software cannot be purchased, leased, or licensed and used for the
intended purpose without modifications that would satisfy [tests
(5) and (6)]". Id. Although this language is fairly self-
explanatory, respondent argues that a taxpayer's expenses incurred
in the implementation of vendor releases of commercially available
software can never satisfy this final test because the releases are
commercially available.
We refuse to adopt such a bright-line rule. Congress clearly
anticipated that some modifications to commercially available
software can satisfy the fifth and sixth tests of our seven-test
analysis. We must examine those modifications, including any
modifications resulting from the implementation of commercially
available software, on a case-by-case basis.
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