Newhouse Broadcasting Corp. and Subsidiaries, et al. - Page 21




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            the language of the conference report quoted above and stated                              
            that "[t]o allow a supply contract to implicitly require the                               
            acquisition of property means that the transition rule exception                           
            would swallow the rule eliminating the ITC."                                               
                  In the third case, United States v. Commonwealth Energy                              
            Sys., 49 F. Supp. 2d 57 (D. Mass. 1999), the taxpayer sought                               
            transition ITC for post-1985 capital additions to its existing                             
            power plant in connection with its performance of four pre-1986                            
            power supply contracts.  The contracts specifically required the                           
            taxpayer "to cause to be built a new conventional steam plant                              
            * * * of an expected net economic capability of approximately                              
            560 megawatts".  Id. at 59.  Because the contracts specified both                          
            the primary energy source and the total generating capacity, the                           
            Court reasoned that the facts of the case were precisely the                               
            facts of the following colloquy that occurred during Senate                                
            debate of the ITC transition rule for supply or service                                    
            contracts:                                                                                 
                        MR. MATSUNAGA: I would like to ask the bill                                    
                  managers to clarify another point.  The supply or                                    
                  service contract transition rule requires that the                                   
                  property be readily identifiable with and necessary to                               
                  carry out the contract.  The committee report explains                               
                  that the specifications and the amount of the property                               
                  must be readily ascertainable from the terms of the                                  
                  contract or from related documents.                                                  
                  Is this Senator’s understanding correct that the                                     
                  requirement is met when a binding power purchase                                     
                  contract specifies the type of generating equipment in                               
                  terms of primary energy source and specifies the amount                              
                  of generating equipment in terms of total generating                                 





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