FPL Group, Inc. & Subsidiaries - Page 66

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                  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 the                              





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