City of Santa Rosa, California - Page 24

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          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 that                  





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