Payless Cashways, Inc. and Its Subsidiaries - Page 15




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          on or before December 31, 1985.                                             
               On brief, respondent concedes that the first requirement has           
          been met in that construction commenced on or before December 31,           
          1985.  However, respondent argues that Payless has failed to                
          prove that it meets the remaining requirements.                             
               Payless bears the burden of proving that it qualifies for              
          relief under the transitional provision.  See Rule 142(a); Welch            
          v. Helvering, 290 U.S. at 115.  We agree that Payless has failed            
          to establish that more than one-half of the cost of the building,           
          including its machinery and equipment, was incurred or committed            
          before January 1, 1986.  On brief, Payless states:  “Although               
          actual costs for equipment and furnishings of the other 2                   
          Pershing Square space [the 59-percent of the building not leased            
          by Payless] is not available, Payless’ costs were $14,812,179 for           
          41 percent of the building.”  (Emphasis added.)  H. Conf. Rept.             
          99-841 (Vol. II), at II-56 (1986), 1986-3 C.B. (Vol. 4) 1, 56,              
          states:                                                                     
               Where the costs incurred or committed before March 2,                  
               1986 (January 1, 1986, for the investment tax credit)                  
               do not equal more than half the cost of the equipped                   
               building, each item of machinery and equipment is                      
               treated separately for purposes of determining whether                 
               the item qualifies for transitional relief.                            
          Payless’ failure to establish the total cost of the building,               
          including its machinery and equipment, is fatal to the argument             
          that more than one-half of the cost of the equipped building was            
          committed or incurred before January 1, 1986.  Without knowing              
          the total cost, it is logically impossible to establish that more           
          than one-half of that amount has been exceeded.                             


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