- 101 -
b. The Tariff Does Not Readily Identify the
Property in Issue
Even assuming for the sake of argument that the tariff is
the type of contract which Congress contemplated when it drafted
TRA section 204(a)(3), we do not believe the property for which
petitioner seeks an ITC was “readily identifiable” in that
tariff. The link between the tariff and the property for which
petitioner seeks ITCs is “too attenuated” to be considered
“readily identifiable” under TRA section 204(a)(3). See United
States v. Commonwealth Energy Sys., 235 F.3d at 17; Bell Atl.
Corp. v. United States, 224 F.3d at 224. Indeed, “Congress added
the word ‘readily’ to imply a more immediate link between the
terms of the contract and the property at issue.” United States
v. Commonwealth Energy Sys., 235 F.3d at 17; see Bell Atl. Corp.
v. United States, 224 F.3d at 224; S. Multi-Media Commcns., Inc.
v. Commissioner, 113 T.C. 412 (1999); United States v. Zeigler
Coal Holding Co., 934 F. Supp. 292, 294-295 (S.D. Ill. 1996).
“Congress did not want to extend ITC to all property that was
identifiable and necessary to carry out a service contract.”
Bell Atl. Corp. v. United States, 224 F.3d at 24.
As in Bell Atl. Corp., the tariff at issue does not specify
any of the property for which petitioner seeks an ITC. Under
petitioner’s construction of TRA section 204(a)(3), any property
used in the generation of electricity or in supplying customers
with electrical service would be considered readily identifiable.
Page: Previous 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 NextLast modified: May 25, 2011