FPL Group, Inc. & Subsidiaries - Page 102

                                               - 183 -                                                  
            974 F.2d at 435-436; Haw. Indep. Refinery, Inc. v. Commissioner,                            
            697 F.2d at 1069.                                                                           
                  We find that petitioner failed to incur or commit $1 million                          
            or 5 percent of the construction costs for the instrument air                               
            system upgrade as of December 31, 1985.  In the fall of 1985, ER                            
            9009 was approved for the instrument air upgrade at St. Lucie                               
            Unit 1 of $692,000.  However, this ER indicates that petitioner                             
            only received authorization to incur $692,000 to upgrade the                                
            instrument air system.  TRA section 203(b)(1)(B) demands that a                             
            taxpayer actually incur the expenses to construct its property,                             
            or that a taxpayer commit to such construction costs in the                                 
            future.  Here, petitioner simply received authorization to expend                           
            funds of the construction for the instrument air upgrade;                                   
            petitioner did not become liable for the instrument air system                              
            upgrade costs when it received this authorization.                                          
                  Petitioner began construction of the instrument air upgrade                           
            at St. Lucie Unit 1 on October 16, 1985.  Construction of the                               
            instrument air upgrade at St. Lucie Unit 2 began on May 12, 1986.                           
            While petitioner has satisfied the construction date requirement                            
            with respect to St. Lucie Unit 1, it failed to begin construction                           
            of St. Lucie Unit 2 as of December 31, 1985.                                                
                  Accordingly, we hold that petitioner is not entitled to an                            
            ITC for the instrument air system upgrade because it failed to                              
            incur or commit $1 million or 5 percent of the construction costs                           





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