James & Marilyn Wadnizak - Page 6

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          not entitled to a credit under sections 38 and 44 for any portion           
          of its cost.  Sec. 179(d)(9); King v. Commissioner, T.C. Memo.              
          1990-548; sec. 1.179-1(g), Income Tax Regs.  At trial,                      
          petitioners conceded that entitlement to the credit would mean              
          that they are not entitled to the full amount of the deduction.             
          This concession presupposes the argument that petitioners could             
          “disclaim” the deduction in favor of the credit even though they            
          made a section 179(c) election.  This is not the case, however,             
          because the election is irrevocable and binds petitioners.  Sec.            
          179(c)(2); King v. Commissioner, supra;2 sec. 1.179-5(a) and (b),           
          Income Tax Regs.                                                            
               Reviewed and adopted as the report of the Small Tax Case               
               To reflect the foregoing,                                              
                                             Decision will be entered                 
                                        for respondent.                               

          2Although we need not delve into the details of whether                     
          petitioners otherwise would have been entitled to the disabled              
          access credit, we note that petitioner admitted that he had been            
          able to adequately treat his disabled patients without access to            
          a panoramic x-ray machine.  See Fan v. Commissioner, 117 T.C. 32,           
          38-39 (2001) (taxpayers were not entitled to a disability access            
          credit in part because of already existing compliance with the              

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