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the taxpayer produces credible evidence with respect to any
factual issue relevant to ascertaining the taxpayer’s tax
liability. Sec. 7491(a)(1).
Petitioner has not argued that he has satisfied any of the
criteria of section 7491(a)(1) or (2). In any event, the burden
of proof does not play a role in the case before us, because
there is no dispute as to a factual issue.
II. ADA Tax Credit
In Arevalo v. Commissioner, 124 T.C. at 254, we discussed in
some detail the interplay of the general business credit under
section 38 and the disabled access credit under section 44(a).
We concluded that the taxpayer’s investment in the pay phones did
not constitute an eligible access expenditure and thus found it
unnecessary to consider whether the taxpayer’s pay phone
activities constituted an eligible small business. Id. at 255.
We explained that “In order for an expenditure to qualify as an
eligible access expenditure within the meaning given that term by
section 44(c), it must have been made to enable an eligible small
business to comply with the applicable requirements under the
ADA”. Id. (and cited cases thereat).
We summarized in Arevalo as follows:
any person who owns, leases, leases to, or operates a
public accommodation is required to make modifications
for disabled individuals in order to comply with the
requirements set forth in ADA title III. While ADA
title III does not define the terms “own”, “lease”,
“lease to”, or “operate”, we must construe those terms
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Last modified: May 25, 2011