- 24 - is an output contract. See sec. 1.141-3(b)(5), Income Tax Regs. However, respondent determined that Company’s contract with petitioner is not an output contract, and the pipeline is not an output facility. Indeed, respondent argues on brief that “The Contract with the Company is not an arrangement for the purchase of output, but rather was entered for the purpose of disposing [of] the Wastewater.” Given respondent’s position and his agreement that the pipeline is a sewage facility, we cannot agree that Company’s rights are comparable to an output contract or any of the arrangements listed in the regulations. We cannot agree that Company has any special legal entitlements with respect to the financed pipeline. Company simply receives the waste product that petitioner disposes of through that facility. Respondent also argues for the first time on brief that the private business use test is met because the facts and circumstances establish that Company receives a special economic benefit with respect to the financed pipeline. In most cases, the private business use test is met only if a nongovernmental person has special legal entitlements to use the financed property under an arrangement with the issuer. Sec. 1.141- 3(b)(1), Income Tax Regs. However, section 1.141-3(b)(7)(ii), Income Tax Regs., provides a special rule for facilities that are not used by the general public: (ii) Special rule for facilities not used by the general public. In the case of financed property thatPage: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
Last modified: May 25, 2011