- 49 -
b. EAPR Ineligible As a Matter of Law
i. WHTC Cases
Respondent contends that “Cases arising under section 921
and 922 [the Western Hemisphere Trade Corporation provisions] are
not applicable to a section 936 issue. See Norfolk Southern
Corp. [v. Commissioner,] 104 T.C. [13] at 41 [(1995)].”
Firstly, the cited opinion, Norfolk S. Corp. v.
Commissioner, 104 T.C. 13, modified 104 T.C. 417 (1995), affd.
140 F.3d 240 (4th Cir. 1998), neither states nor stands for the
proposition for which respondent cites it. The cited opinion
does not even involve or cite sections 921, 922, or 936 or their
predecessors.11
11Norfolk S. Corp. v. Commissioner, 104 T.C. 13, modified
104 T.C. 417 (1995), affd. 140 F.3d 240 (4th Cir. 1998), was an
investment credit case; it did not involve the WHTC provisions or
the possession tax credit provisions. Respondent directs our
attention to Norfolk S. Corp. v. Commissioner, 104 T.C. at 41.
That page is part of our analysis of the taxpayer’s contention
that “used” in the phrase “used in the transportation of
property” in sec. 48(a)(2)(B)(v), must be given the same meaning
as in the phrase “used in the trade or business” in sec.
167(a)(1). We concluded that, in the context of sec.
48(a)(2)(B)(v), it made sense to give “used” a different meaning
from “used” in the context of sec. 167(a)(1). We buttressed our
conclusion as follows, Norfolk S. Corp. v. Commissioner, 104 T.C.
at 40 n.30:
30 We note in further support of our rejection of
petitioners’ interpretation of the container exception that
in sec. 48(a)(2)(B)(v) Congress employed the phrase “used in
the transportation of property”, not “used in the trade or
business of transporting property”. “The use of different
phrases may reasonably be viewed as an indication of two
different meanings.” Pavelic & LeFlore v. Marvel
(continued...)
Page: Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 NextLast modified: May 25, 2011