Warbelow's Air Ventures - Page 6




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                         such employee for such employer are                          
                         performed within an Indian                                   
                         reservation, and                                             
                              (C)  the principal place of abode                       
                         of such employee while performing such                       
                         services is on or near the reservation                       
                         in which the services are performed.                         
                         [Emphasis added.]                                            
          The parties dispute the meaning of the phrase “within an Indian             
          reservation” contained in section 45A(c)(1)(B).8                            
          I.   “Within” an Indian Reservation                                         
               Petitioner argues that section 45A does not require a                  
          qualified employee to work “on” an Indian reservation but                   
          “within” an Indian reservation.  Petitioner contends that the               
          Galena airport is within the exterior boundaries of a reservation           
          and is therefore “within” an Indian reservation as defined by               
          section 45A because the Galena airport is totally surrounded by             
          land that qualifies as an Indian reservation.                               
               Respondent argues that Congress intended the phrase “within            
          an Indian reservation” in section 45A to refer to the interior of           
          the Indian reservation itself, not to non-Indian land adjacent to           
          an Indian reservation.  Respondent contends that Congress                   
          provided the IEC to encourage private businesses to locate on               
          Indian reservations in order to employ Native Americans who live            

               8  Sec. 7491 is effective for court proceedings arising in             
          connection with examinations commencing after July 22, 1998.                
          Petitioner does not contend that sec. 7491 is applicable to its             
          case.  Further, we do not find that the resolution of this case             
          depends on which party has the burden of proof.                             





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Last modified: May 25, 2011