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water to Company, and the wastewater is merely a byproduct of the
sewage system.
2. Sewage Ratepayers
We first decide whether the sewage ratepayers use the
pipeline as members of the general public, since this
determination is relevant in deciding whether the private
business tests are met. Under section 141(b)(6)(A), use as a
member of the general public is not considered a private business
use. Use of financed property by nongovernmental persons in
their trades or businesses is treated as general public use only
if the property is intended to be available, and in fact is
reasonably available, for use on the same basis by natural
persons not engaged in a trade or business. Sec. 1.141-3(c)(1),
Income Tax Regs.
Petitioner argues that the use by the sewage ratepayers
involves general public use, that their use is excepted from the
definition of private business use, and that such use is not
taken into account for purposes of section 141(b)(1). Respondent
made no determination as to whether the use by the sewage
ratepayers represents general public use. Further, on brief,
respondent states that he has never considered whether the use by
the sewage ratepayers involves general public use, because
whether those ratepayers are using the pipeline as members of the
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