FPL Group, Inc. & Subsidiaries - Page 213

                                                - 98 -                                                  
                  property.  The court finds that the property for which                                
                  * * * [the taxpayer] claims the ITC was not “readily                                  
                  identifiable with and necessary to carry out” these                                   
                  “contracts.”                                                                          
            Id. at 7382, 99-1 USTC par. 50,119, at 87,040.                                              
                  We find the District Court’s reasoning in Bell Atl. Corp.                             
            persuasive.  Indeed, the tariff that petitioner argues is a TRA                             
            section 204(a)(3) contract is strikingly similar in its broad                               
            description of rights and duties to the tariff described by the                             
            District Court in Bell Atl. Corp.101  The tariff at issue sets                              
            forth the rates to be charged and the general service commitments                           
            to which FPL had to adhere if it wanted to provide electrical                               
            service to customers under the jurisdiction of the FPSC.                                    
            Customers could discontinue service at will and without penalty.                            
            The price for electrical service was not permanently fixed; from                            
            time to time, FPL could (and did) petition to change the price                              
            term in the tariff.  The term establishing the fee that customers                           
            must pay for electrical service was not fixed.  Thus, we agree                              
            “that the tariffs are [not] contracts under the normal definition                           
            of that term.”  Id.  Rather, the tariff is more akin to a set of                            
            operating rules imposed on petitioner by the State that                                     

                  101 In Bell Atl. Corp. v. United States, 224 F.3d 220 (3d                             
            Cir. 2000), the Court of Appeals for the Third Circuit affirmed                             
            the District Court’s holding, which denied the taxpayer’s claimed                           
            ITC.  In affirming the District Court, the Court of Appeals did                             
            “not find it necessary to decide whether Bell Atlantic's tariffs,                           
            franchises, and contracts with other telephone companies are                                
            ‘written service contracts’ within the meaning of the Act.”  Id.                            
            at 223.                                                                                     




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