- 150 - parties * * * against one or both of the Co-owners and arising out of or resulting from the acquisition of the Joint Facilities or any part thereof, the planning, engineering, design, licensing, procurement, construction, installation or completion of the Joint Facilities * * * shall be considered a Cost of Construction, Cost of Plant or Cost of Operation, as appropriate. We agree with respondent that the subject matter of the joint agreement was not for the construction of property. As we discussed earlier, in Katerelos v. Commissioner, T.C. Memo. 1996- 340, this Court found that the taxpayers were not entitled to an ITC for equipment used in a leased premises because the subject matter of the lease was the use of the premises, not the purchase of the equipment. Here, we think that the parties entered into the joint agreement to create a joint venture between FPL and the JEA, and to define the relationship of the coowners. We do not think that the title of this agreement, which includes the construction of the SJRPP, defines the subject matter of the contract; instead, we look at the terms of the contract. The recitals indicate that “the parties desire to provide for the construction and operation of Coal Units 1 and 2 by JEA and FPL in accordance with this Agreement”. This explains the parties’ intentions or the expected plan for the joint venture. We do not think that this statement shows that the subject matter of the contract is the construction of the SJRPP. While the purpose of the joint venture is to operate the SJRPP, the terms of the joint agreement do not provide for thePage: Previous 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 Next
Last modified: May 25, 2011