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Petitioner contends that he is eligible to claim the
disabled access credit under section 44(a) because (1) his pay
phone “business” was an eligible small business during 2001 and
(2) his $10,000 investment in the pay phones was an eligible
access expenditure. In the notice of deficiency that respondent
sent to petitioner, respondent disallowed petitioner’s claim for
the disabled access credit because no “business reason” had been
given for petitioner to comply with the ADA. In respondent’s
trial memorandum, respondent contends that petitioner’s $10,000
investment in the pay phones is not an eligible access
expenditure because it “is not at all clear that Petitioner was
required to be compliant with the ADA”. In addition, respondent
contends that petitioner’s pay phone activities do not qualify as
an eligible small business because petitioner “was not in a
business”. Because we conclude that petitioner’s $10,000
investment in the pay phones does not constitute an eligible
access expenditure, it is unnecessary for us to consider whether
petitioner’s pay phone activities constituted an eligible small
business during 2001.
In order for an expenditure to qualify as an eligible access
expenditure within the meaning given that term by section 44(c),
it must have been made to enable an eligible small business to
comply with the applicable requirements under the ADA. See
Fan v. Commissioner, 117 T.C. 32, 38-39 (2001). Consequently, a
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