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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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