UNITED STATES TAX COURT

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136 T.C. No.

10

UNITED STATES TAX COURT

GIBSON & ASSOCIATES, INC. , Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5863-08.

Filed February 24, 2011.

P is an engineering and heavy construction company

that primarily 'erects or 'rehabilitates streets,

bridges, airport runways, and other related real

property (collectively, real property) .' P' s rehabilitation services relate mainly to real property

that is substantially dilapidated lor damaged from a

~

casualty. P arlso repairs and maintains real property.

P reported on its Federal income tax return for the

taxable year ended June 30, 2006, that its receipts are

"domestic production gross receipts" (DPGR) eligible

for a deduction under sec. 199, I.R.C., and claimed a

$63, 435 deduction under that section.

R determined in

the notice of deficiency that none of P's receipts

qualified as DPGR.

Held: P's receipts are DPGR to the extent P

erected or substantially renovated real property, and

the extent to which P substantially renovated real

property turns on whether P's activities with respect

to each freestanding it.em of real property that

operated and performed a discrete function in and of;

i SERVED FEB 2 4 2011

- 2 itself:

(1) Materially increased the value of the real

property, (2) substantially prolonged the useful life

of the real property, and/or (3) adapted the real

property to a different or new use.

Held, further, P's activities materially increased

the value of the real property, substantially prolonged

the useful life of the real property, and/or adapted

the real property to a different or new use to the

extent that P's activities were not repairs (within the

meaning of sec. 263(a), I.R.C.), unrelated to P's

primary business.

Held, further, P's activities did not materially

increase the value of the real property, substantially

prolong the useful life of the real property, and/or

adapt the real property to a different or new use to

the extent that P's activities repaired or otherwise

maintained real property unrelated to P's primary

business.

Il

Charles D. Lieser, for petitioner.

George E. Gasper, for respondent.

PARIS, Judge:

Petitioner petitioned the Court to

redetermine respondent's determination of a ,$21,568 deficiency in

its Federal income tax for its taxable year ended June 30, 2006

(subject year).

The deficiency results from respondent's

determination that petitioner may not deduct $63,435 under

section 199(a)..I

Respondent disallowed that deduction after

determining that petitioner had no "domestic production gross

Unless otherwise 'indicated, section references are to the

Internal Revenue Code Nf 1986 (Code), as amended, and Rule

references are to the Tax Court Rules of Practice and Procedure.

Dollar amounts are rounded.

- 3 -

receipts".(DPGR).within the meaning of section 199(c) (4).

Petitioner reported that its DPGR totaled $26,053,570.2

Respondent now concedes that petitioner had DPGR of

$13,849,246, and petitioner concedes that it incorrectly reported

$259,156 of the $26,053,570 as DPGR.3

We- decide whether the

remaining $11,945,168 ($26,053,570 - $13,849,246 - $259,156)

(disputed amount) is DPGR.

,

We hold it is to the extent stated

herein.

FINDINGS OF FACT

Some facts were stipulated.

The stipulation of facts and

the exhibits. submitted therewith are incorporated herein by this

reference.

Petitioner is a family-owned corporation that reports

its income and expenses on the basis of a fiscal year ending on

June 30.

Its principal place of business was in Texas when its

petition was filed.

2As relevant here and discussed infra, the deduction under

sec. 199(a) equals 3 percent of the lesser of a taxpayer's

qualified production activities income (QPAI) or the taxpayer's

taxable income (as computed without the deduction under sec.

199(a)), and a taxpayer's QPAI equals the taxpayer's DPGR less

the sum of its cost of goods sold (allocable to the DPGR) plus

certain expenses and other items. Petitioner's reported

deduction of $63,435 equals 3 percent of its reported taxable

income (as computed without the deduction).

3Petitioner reported that its DPGR totaled $26,053,570 but

now asks the Court to find that its DPGR -totaled $25,794,414

(i.e., $259,156 less than reported). Petitioner concedes

explicitly that $98,455 of the $259,156 is not- DPGR, and we

consider petitioner also to concede that the-remaining $160,701

($259,156 - $98,455)

is not DPGR as well.

Petitioner is an

ngineering and heavy highway construction

company that primarily erects or rehabilitates streets, -bridges,

airport runways, and o her major components or substantial

structural parts of re 1 property'(primarily, infrastructure) in

Texas, 'Oklahoda, Arkansas, and Kansas. ' Petitioner specializes in

structural rehabilitatdon, epoxy injection,- concrete paving,

bridge jacking, lead a atement, -and protective coatings.

Petitioner also maintains and repairs infrastructure and other

||

11

real property.

11

-Petitioner works through its employees.

During the subject

year, petitioner emplo pd approximately 90 individuals.

Theset

employees werer mainly e gineers or heavy constructi-on workers,

and petitioner paid- the

over $3 million in salary and wages.

Petitioner -hired and re ained additional employees in subsequent

years.

Petitioner worked

subject year.

n 136 construction projects during the

Petitioner realized $25,892,869 of gross receipts

from these projects, in luding $16,324,032 of gross receipts from

State or Federal projects paid for with Federal funds.4

I!

Petitioner reported the $25,794,414

(and the now conceded

'A project may be -paid for with Federal funds'if the

Secretary of Transporta ion concludes that the project is a

cost-effective means of extending the useful life of a

Federal-aid highway. See 23 U.S.C. sec. 116 (2006); see also 23

U.S.C. sec. 101(a) (31)

(2006)

(defining the word "Secretary" for

purposes of tit. 23 as dhe "Secretary of Transportation").

!i

- 5 -

$259,156) as DPGR and claimed a $63,435 deduction under section

199.5

Respondent determined that -petitioner could not deduct the

$63,435 because petitioner had no DPGR.

Petitioner placed its construction projects into three

categories.

The first category, "casualty" projects, involved

work that petitioner performed on infrastructure that was

significantly damaged by an act of God or by a casualty such as a

fire or an overheight or an overweight vehicle hitting or

traveling on a bridge.

The second category, "new construction"

projects, involved work that petitioner performed primarily as a

subcontractor on contractors' multimillion dollar projects

involving major rehabilitation- of real property (primarily,

infrastructure).

-The third category, "rehabilitation" projects,

involved work that peti-tioner performed as a contractor

rehabilitating dilapidated real property (primarily,

infrastructure). - Petitioner classified its projects into these

three categories after reviewing the bid sheets and the other

data in its files and after talking to individuals involved with

the projects.

Petitioner's bid sheets were papers that

petitioner prepared to calculate and place a bid on a project

offered to contractors (or subcontractors).

Each bid sheet

SPetitioner used the percentage of completion method under

sec. 460 to compute its taxable income.

- 6 contained an estimate of the amounts and types of costs that

petitioner expected to incur in performing the project.

Petitioner further characterized its projects as:

(1) Substantial renovation or (2) repair or maintenance.

Petitioner characterized a project as substantial ~renovation if

petitioner concluded that its work on the project:

(1)

Substantially prolonged the useful life of real property;

(2)

materially increased the value of real property;- or (3) adapted

real property to a new or different use.

Petitioner categorized

its construction projects as repair or maintenance if petitioner

concluded that its work on the project:

(1) Was necessary to

keep real property (or a component thereof) functioning on a

short-term basis or (2) included cosmetic or aesthetic work.

Appendixes A, B, and C list petitioner's projects (other

than 32 projects which are the subject of the parties'

concessions discussed supra p. 3) as categorized by petitioner.

The appendixes show for each of those 104 remaining projects

(disputed projects):

(1) The job number,

work that petitioner performed,

(2) the general type of

(3) the final contract amount,

(4) the revenue that petitioner earned for the subject year,

(5) whether the project was paid for with Federal funds, and

(6) petitioner's characterization of the project as repair or

maintenance, substantially prolonging the useful life of real

property, materially increasing the value of real property,

and/or adapting real property to a different or new use.

The

specific work that petitioner performed on each project is as

follows:

Casualty Projects

05-1021

Petitioner performed this project for the -Texas

Department of Transportation (TxDOT). Petitioner

strengthened a bridge at Highway 123 and McArthur

Boulevard. The bridge had been critically damaged by a

fire caused by an overturned fuel truck, and most of

the bridge was closed. Petitioner strengthened the

columns and spans of the bridge using carbon fiber

reinforced polymer and structural patching.

Petitioner

concluded that this work substantially prolonged the

useful life of the bridge and materially increased its

value.

05-1023

Petitioner performed this project for the North

Texas Tollway Authority (NTTA).

Petitioner shored up

an overhead emergency sign structure on the North Texas

Tollway after the sign was damaged.

Petitioner's work

allowed the NTTA to keep the sign in place. The sign

would have been demolished absent petitioner's work.

Petitioner concluded that this work substantially

prolonged the useful life of the sign.

05-1025

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge near Pampa, Texas, on

U.S. Highway 83.- The work rehabilitated damaged

concrete beams so that the bridge could reopen to

traffic and carry its design loads. Petitioner

concluded that this work substantially prolonged the

useful life of the bridge and materially increased its

value.

05-1029

Petitioner performed this project- for the Oklahoma

Department of Transportation (ODOT). Petitioner worked

- 8 -

on a bridge in Oklahoma County, Oklahoma, on Interstate

Highway 40 over Anderson Road. The work rehabilitated

damaged concrete beams so that the bridge could reopen

to traffic and carry its design loads. Petitioner

concluded that this work substantially prolonged the

useful life of the bridge and materially increased its

value.

05-1045

Petitioner performed this project for the ODOT.

Petitioner worked on a steel bridge on U.S. Highway 64

and 129 West Avenue between Tulsa and Sand Springs,

Oklahoma. The work rehabilitated damaged concrete

beams so that the bridge could reopen to traffic and

carry its design loads. Petitioner concluded that this

work substantially prolonged the useful life of the

bridge and materi 11y increased its value.

05-1054

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge near McKinney, Texas, in

Farmersville, Texas, on U.S. Highway 380 and Main

Street. The work rehabilitated and/or replaced damaged

concrete beams so that the bridge could reopen to

traffic and carry its design loads.

Petitioner also

performed some concrete work. Petitioner concluded

that this work substantially prolonged the useful life

of the bridge and materially increased its value.

E

05-1056

Petitioner pekformed this project for the TxDOT.

Petitioner worked on a bridge on Farm-to-Market 157

over Interstate Highway 30 in Tarrant County, Texas.

The work rehabilitated damaged concrete beams so that

the bridge could reopen to traffic and carry its design

loads.

Petitioner concluded that this work

substantially prolonged the useful life of the bridge

and materially increased its value.

05-1059

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate Highway 37

and U.S. Highway 181 in Corpus Christi, Texas. The

work rehabilitated damaged concrete beams so that the

- 9 bridge could reopen to traffic and carry its design

loads.

Petitioner concluded that this work

substantially prolonged the useful life of the bridge

and materially increased its value.

05-1060 -

Petitioner performed this project for. the NTTA.

Petitioner worked on a highway. Petitioner's work.

consisted of "PGBT fire damage". Petitioner concluded

that this work was repair or maintenance.

05-1064

Petitioner performed this project for the ODOT.

Petitioner worked on a bri'dge on Interstate Highway 40

at Choctaw Road.. The work rehabilitated damaged

concrete beams so that the bridge could reopen to

traffic and carry its design loads. Petitioner

concluded that this work'substantially prolonged the

useful life of the bridge and materially increased its

value.

05-1065

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on -Interstate Highway 35

at Corinth Street. The work rehabilitated damaged

concrete beams so that the bridge could reopen to

as

traffic and carry its design loads. Petitioner

concluded that this work substantially prolonged the

useful life of the bridge and materially increased its

value.

05-999

Petitioner performed this project for the -ODOT.

Petitioner worked on a bridge at Randall Avenue and

Interstate Highway 40 in Oklahoma. Petitioner sealed

joints, patched the bridge deck, and retrofitted beam

ends.

Petitioner also removed existing lead paint (a

perceived hazardous material), blasted the bridge tos

remove corrosion, and applied a protective paint

coating designed to prevent future corrosion.

Petitioner concluded that this work substantially

prolonged the useful life of the bridge.

- 10 06-1072

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at County Road and

Interstate Highway 40 in Custer County, Oklahoma.

Petitioner replaced structural steel portions of the

bridge to return the bridge to its original load

carrying capacity. Petitioner concluded that this work

substantially prolonged the useful life of the bridge

and materially increased its value.

06-1073

Petitioner performed this project for the ODOT.

Petitioner workedion a bridge at Ladd Road and

Interstate Highway 35 in McClain County, Oklahoma.

Petitioner's work strengthened the bridge and returned

the bridge to its ,original load carrying capacity.

Petitioner concluded that this work substantially

prolonged the useful life of the bridge and materially

increased its value.

06-1074

Petitioner performed this project for the ODOT.

Petitioner worked, on a bridge at Interstate Highway 244

and the 23rd Street Ramp in Tulsa, Oklahoma.

Petitioner strengthened the columns of the bridge.to

resist future impact damage from derailed train cars in

a nearby railroad yard. Petitioner concluded that this

work substantially prolonged the useful life of the

bridge.

.

e

06-1078

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge on State Highway 266 and

U.S. Highway 169 in Tulsa County, Oklahoma. Petitioner

rehabilitated damaged concrete beams so that the bridge

could reopen to traffic and carry its design loads.

Petitioner concluded that this work substantially

prolonged the useful life of the bridge.

06-1084

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate Highway 37

and Sundown Bridge in Texas. Petitioner rehabilitated

- 11 -

damaged concrete beams so that the bridge could reopen

to traffic and carry its design loads. Petitioner

concluded that this work substantially prolonged the

useful life of the bridge.

06-1087

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate Highway 20

at Farm-to-Market 31 in Texas.

Petitioner

rehabilitated damaged concrete beams to restore the

bridge's load carrying capacity. Petitioner concluded

that this work.substantially prolonged the useful life

of the bridge.

06-1091

Petitioner performed this project- for the TxDOT.

Petitioner worked on a bridge at Interstate Highway 30

and Jim Miller Road in Texas. Petitioner rehabilitated

damaged concrete beams so that the bridge could reopen

to traffic and carry its design loads. Petitioner

concluded that this work substantially prolonged the

useful life of.the bridge.

New Construction Projects

03-906

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge at U.S. Highway 287 and

the Trinity River in Texas. Petitioner raised the

bridge to keep it, out of the flood plain and reduce the

chance that the bridge could close on account of high

water.or drifting debris. Petitioner concluded that

this work substantially prolonged.the useful life of

the bridge.

03-921

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge at U.S. Highways 80 and

175 in Texas.

Petitioner'-s work consisted of patching

the deck of the bridge.

Petitioner concluded that this

work substantially prolonged the useful life of the

bridge driving surface.

- 12 03-926

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Loop 335 in Texas.

Petitioner applied an epoxy overlay designed to protect

the bridge from the environment. Petitioner concluded

that this work substantially prolonged the useful life

of the bridge deck.

04-937

Petitioner performed this project for the City of

Dallas, Texas.

Petitioner worked on a blast fence at

two locations at Love Field Airport in Dallas . The

blast fence included catwalks and port holes and was

built on an old apron to allow for maintenance run-ups

and a staging area for hijacked aircraft.

Petitioner

concluded that this work materially increased the value

of the property and adapted the property to a new or

different use.

e

04-954

Petitioner performed this project for the TxDOT.

Petitioner worked on some bridge joints on Loop 360 in

Travis County,.Texas. Petitioner rehabilitated

pavement and joints.

Petitioner concluded that this

work substantially prolonged the useful life of the

pavement .

04-955

Petitioner performed this project for the TxDOT.

Petitioner worked on some bridge header joints in

Williamson County; Texas. Petitioner rehabilitated of

pavement and joints.

Petitioner concluded that this

work substantially prolonged the useful life of the

pavement .

04-956

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate 35. in

Travis County, Texas. Petitioner's work involved

structural steel, head joints, and bridge deck patches.

Petitioner concluded that this work involving

structural steel and head joints substantially

prolonged the useful life of an HMAC overlay.

- 13 -

Petitioner concluded that this work involving the

bridge deck patches substantially prolonged the useful

life of the bridge deck and the HMAC overlay.

O'4-959

Petitioner performed this project f-or the TxDOT.

Petitioner worked on a bridge on Interstate 35E in

Texas.

Petitioner rehabilitated concrete.pavement.so

that an asphalt overlay could be installed properly.

Petitioner also rehabilitated joints on the bridge.

Petitioner concluded that this work substantially

prolonged the useful life of the pavement on the

bridge.

04-965

Petitioner performed this project for the TxDOT.

Petitioner-worked on State Highway 205 in Texas.

Petitioner added turn lanes and driveways and patched

paving.

Petitioner concluded that the added lanes and

driveways adapted the highway to a different use.

Petitioner concluded that its pavement work

substantially prolonged the useful life of both the

concrete pavement and the new HMAC overlay.

04-967

Petitioner performed this project for the TxDOT.

Petitioner worked on Interstate Highway 35E in Dallas,

Texas.

Petitioner rehabilitated concrete pavement so

that an asphalt overlay could be installed properly.

Petitioner also rehabilitated joints on the bridge.

Petitioner concluded that this work substantially

prolonged the useful life of the pavement on the

bridge.

04-968.

Petitioner performed this project for Eastfield

College in Texas.

Petitioner rehabilitated a failed

column at a building at the college.

Petitioner

concluded that this work substantially increased the

useful life"of the building from zero to its original

design life.

- 14 -

04-971

Petitioner performed this project for the

Dallas/Fort Worth Airport Authority.

Petitioner

worked on a garage ramp at_the airport. The ramp had

deteriorated, and petitioner rebuilt the ramp to allow

for traffic to exit the garage. Petitioner concluded

that - this work materially increased the value of the

garage ramp and adapted the ramp to a new or dif ferent

use.

04-981

Petitioner performed this project for the TxDOT.

Petitioner worked on U.S. Highway 67 in Texas.

Petitioner rehabilitated concrete pavement so that an

asphalt overlay could be installed properly.

Petitioner also rehabilitated joints on the bridge.

Petitioner concluded that this work substantially

prolonged the useful life of the pavement on the

bridge.

04-982

Petitioner performed this project for the TxDOT.

Petitioner worked on Interstate Highway 35E in Texas.

Petitioner rehabilitated concrete pavement so that an

asphalt overlay could be installed properly.

Petitioner also rehabilitated joints on the bridge.

Petitioner concluded that this work substantially

prolonged the useful life of the pavement on the

bridge.

05-1000

Petitioner performed this project for the Kansas

Department of Transportation.

Petitioner worked on a

bridge on Interstate Highway 35 over 127th Street in

Wichita, Kansas. Petitioner applied an epoxy overlay

designed to protect the bridge from the environment.

Petitioner concluded that this work substantially

prolonged the useful life of the bridge.

05-1002

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge on State Highway 88 over

Dog Creek in Rogers County, Øklahoma. Petitioner

-715 installed a new traffic rail that upgraded the crashworthiness rating from the old rail. Petitioner

replaced the bridge deck to allow for traffic and

increase the bridge's load rating.

Petitioner

concluded that this work substantially prolonged the

useful life of the bridge, materially increased its

value, and adapted the bridge to a new or different

use.

05-1003 ,

Petitioner performed this project for the City of

Dallas, Texas.

Petitioner worked on the-Marsalis

Avenue Bridge over the Dallas Zoo.

Petitioner

repainted the.deteriorating substructure, replaced a

portion of the deck (including with a new pedestrian

walkway), replaced a number of beams and girders, and

applied corrosive painting after removing the old

paint. Petitioner concluded that this work

substantially -prolonged the useful life of the bridge.

05-1011

Petitioner performed this project for the Crescent

Hotel in Dallas, Texas. Petitioner modified a handrail

at the hotel and removed and replaced concrete to

comply with the Americans with Disabilities Act of 1990

(N2A), 42 U.S.C. secs. 12101-12213

(2006).

Petitioner

concluded that this work adapted the property to a new

or different-use.

05-1018

Petitioner performed this project for the TxDOT.

Petitioner worked on.a bridge at U.S.-Highway 287 and

Heritage Parkway in Texas.

Petitioner rotated the

bridge's bearing pads. Petitioner concluded that this

work was repair or maintenance.

s

05-1019 .

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on U.S. Highway 79 in

Panola County, Texas.

Petitioner rehabilitated

concrete pavement so'that an asphalt overlay could- be

installed properly-. Petitioner also rehabilitated

joints on the bridge. Petitioner concluded that this

- 16 -

work substantially prolonged the useful life of the

pavement on the bridge.

05-1028

Petitioner performed this project for the ODOT.

Petitioner worked on a steel bridge over Business

Interstate Highway 40 in Beckham County, Oklahoma. The

contractor renovated the bridge, and petitioner applied

the protective coating.

Petitioner also removed

existing lead paint" (a perceived hazardous material) ,

blasted the bridge 'to remove corrosion, and applied a

protective paint coating designed to prevent future

corrosion.

Petitioner concluded that this work

substantially prolonged the useful life of the bridge

and materially increased its value.

"

05-1032

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on U.S. Highway 287 in

Texas.

Petitioner leveled the bearing pads.

Petitioner concluded that this work was repair or

maint enance .

05-1036

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate Highway 20

over the Brazos River in Texas.

Petitioner adjusted

the bearings of the bridge to prevent damage and

rehabilitated cracks in a structural steel diaphragm to

allow the bridge to carry the load for which is was

originally designed. Petitioner also removed existing

lead paint (a perceived.hazardous material), blasted

the bridge to remove corrosion, and applied a

protective paint coating designed to prevent future

corrosion.

Petitioner concluded that this work

substantially prolonged the useful life of the bridge

and materially increased its value.

05-1037

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge on U.S. Highway 270 over

Caston Creek in Le Flore County, Oklahoma.

Petitioner

sealed joints, patched the bridge deck, and retrofitted

- 17 -

beam ends. Petitioner concluded that this work

substantially prolonged the useful life of the bridge.

05-1038

Petitioner performed.this project for the TxDOT.

Petitioner worked on the pavement on Interstate Highway

20 in.Texas. Petitioner rehabilitated concrete

pavement so that an asphalt overlay could be installed

properly. Petitioner also rehabilitated joints on the

bridge.

Petitioner concluded that this work

substantially prolonged the useful life of the pavement

on the bridge.

05-1043 -

Petitioner performed this project for the TxDOT.

Petitioner worked on the intersections at State Highway

356.

Petitioner added left and right turn lanes to the

intersections to improve traffic flow. Petitioner

concluded that this work materially increased the value

of the property and adapted it to a new or different

use.

05-1047

Petitioner performed this project for the City of

Fort Worth, Texas.

Petitioner worked on the Hulen

Street Bridge in Fort Worth.

Petitioner sealed joints,

patched the bridge deck, and retrofitted-beam ends.

Petitioner concluded that this work substantially

prolonged the useful life of the bridge.

05-1052

Petitioner performed this project for the City of

Dallas, Texas.

Petitioner worked on the aprons at two

terminals at the Love Field Airport in Dallas.

Petitioner upgraded the ramps to the aprons for heavier

aircraft, by removing approximately 12,000 square yards

of approximately 50-year-old, 13-inch pavement and

replacing it with 16-inch pavement. Petitioner also

replaced the existing trench drains with new drains

that met applicable Federal standards.

Petitioner

concluded that this work substantially prolonged the

useful life of the property, materially increased its

value, and adapted the property to- a new or different

use.

- 18 05-1057

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on U.S. Highway 83 in

Texas.

Petitioner modified the bearings on the bridge

to prevent damage and to maintain the bridge's load

carrying capacity. , Petitioner concluded that this work

substantially prolonged the useful life of the bridge.

05-995

Petitioner performed this project for the City of

Oklahoma City, Oklahoma. Petitioner worked on a bridge

at Walnut Avenue in Oklahoma City. Petitioner removed

existing lead paint (a perceived hazardous material),

blasted the bridge to remove corrosion, and applied a

protective paint coating designed to prevent future

corrosion.

Petitioner concluded that this work

substantially prolonged the useful life of the bridge.

06-1069

Petitioner performed this project for the Lakes of

Coppell housing subdivision in Coppell, Texas.

Petitioner worked on a failing retaining wall that

spanned the length of the waterways running through the

subdivision. The wall had'cracked and was falling into

the water. Petitioner replaced the failing wall with a

new retaining wall and improved the drainage behind the

wall. .Petitioner econcluded that this work

substantially prolonged the useful life of the

subdivision and materially increased its value.

06-1071

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on U.S. Highway 290 in

Texas.

Petitioner installed new bridge joints to

improve the life of the new overlay.

Petitioner

concluded that this work substantially prolonged the

useful life of the property.

06-1085

Petitioner performed this project for the TxDOT.

Petitioner worked on a culvert along State Highway 121

in Texas.. Petitioner's work consisted of structural

- 19 repairs and waterproofing. Petitioner concluded that

this work was repair or maintenance.

06-1089

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate Highway 30

in Texas.

Petitioner rehabilitated concrete pavement~

so that an asphalt overlay could be installed properly.

Petitioner concluded.that this work substantially

prolonged the useful life of the pavement on the

bridge.

06-1093

Petitioner performed this project for the TxDOT.

Petitioner worked on the State Highway 356/Interstate

Highway 35E/U.S. Highway 75 bridge in Texas.

Petitioner applied an epoxy overlay to'restore the

driving surface and protect the concrete deck from

future corrosion. Petitioner concluded that this work

substantially prolonged the useful life of the bridge.

Misc. Jobs

Petitioner does not explain the jobs that it has

included in this project. We understand petitioner not

to argue that the work on this project was other than

repair or maintenance.

Rehabilitation Projects

02-861

Petitioner performed this project for the

Dallas/Forth Worth Airport Authority. Petitioner

worked on pavement at Dallas/Fort Worth.Airport.

Petitioner rehabilitated the pavement on the

runway/taxiway. Petitioner concluded that this work

substantially prolonged the useful life of the

runway/taxiway.

03-874

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate Highway 35

and Peachtree Road in Tarrant County, Texas.

Petitioner rehabilitated pavement and joints.

- 20 -

Petitioner concluded that this work substantially

prolonged the useful life of the bridge.

03-890

Petitioner performed this project for the ODOT.

Petitioner worked on various bridges in Garvin,

Lincoln, and Johnston Counties, Oklahoma, near State

Highways 18, 19, and 99. Petitioner sealed joints,

patched bridge decks, and retrofitted beam ends.

Petitioner concluded that this work substantially

prolonged the useful lives of the bridges.

> 03-902

Petitioner performed this project for the ODOT.

Petitioner worked on various bridges in Caddo and Love

Counties, Oklahoma, near State Highways 32 and 58 and

U.S. Highways 77 and 281. Petitioner sealed joints,

patched bridge decks, and retrofitted beam ends.

Petitioner-concluded that this work substantially

prolonged the useful lives of the bridges.

03-915

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate Highway 635

in Texas.

Petitioner rehabilitated pavement and joints

so that an asphalt overlay could be installed properly.

Petitioner concluded that this work substantially

prolonged the useful life of the bridge.

04-950

Petitioner performed this project for the ODOT.

Petitioner worked'on bridges at U.S. Highways 39 and 77

in Cleveland and McClain Counties, Oklahoma. The

bridges were rapidly deteriorating, and petitioner

replaced the concrete decks and floor beams of the

bridges.

Petitioner's work allowed the load

restrictions for truck traffic to be lifted.

Petitioner concluded that this work substantially

prolonged the-useful lives of the bridges, materially

increased their values, and adapted the bridges to new

or different uses.

- 21 04-951

Petitioner performed this project for the ODOT.

Petitioner worked on various bridges in Oklahoma at

State Highways 14, 15, and 136. Petitioner removed

existing lead paint (a perceived hazardous material),

blasted the bridges to remove corrosion, and applied

protective paint coatings designed to prevent future

corrosion. Petitioner concluded that this work

substantially prolonged the useful life of the bridges

and materially increased their values.

04-958

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at State Highway 151 and

Keystone Dam in Tulsa County, Oklahoma. Traffic had

fallen through the bridge's deck, and concrete from the

pavement had fallen down into the operating mechanisms

of the hoist. Petitioner rehabilitated the concrete

pavement of the bridge dam and rehabilitated a

guardrail.

Petitioner concluded that this work

substantially extended the useful life of the bridge

and materially increased its value.

04-960

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at State Highway 54 over

Calvary Creek in Washita County, Oklahoma. Petitioner

added structural steel to the bridge beams which

increased the weight of loads that trucks could carry

on the bridge. Petitioner concluded that this work

substantially prolonged the useful life of the bridge

and adapted it to a new or, different use.

04-961

' *

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at State Highway 54 over

Horse & Deer Creeks in Custer County, Oklahoma.

Petitioner added structural steel to the bridge beads

which increased the weight of loads that trucks could •

carry on the bridge. - Petitioner concluded that this

work substantially prolonged the useful life of the bridge and adapted it to a new or different use.

- 22 04-969

Petitioner performed.this project for the ODOT.

Petitioner worked on four bridges on county roads in

Oklahoma.

Petitioner sealed joints, patched the decks

of the bridges, and retrofitted beam ends. Petitioner

concluded that this.work substantially prolonged the

useful lives of the bridges.

04-970

Petitioner performed this project for the ODOT.

Petitioner worked on seven bridges in Oklahoma.

Petitioner sealed joints, patched the decks of the

bridges, and retrofitted beam ends. Petitioner

concluded that this work substantially prolonged the

useful lives of the bridges.

04-983

.

Petitioner performed this project for the Town of

Addison, Texas. Petitioner worked on pavement on a

bridge on Belt Line Road in Addison. Petitioner

rehabilitated pavement and joints so that an asphalt

overlay could be installed properly. Petitioner

concluded that this work substantially prolonged the

useful life of the bridge.

04-985

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at State Highway 151 and

Keystone Dam in Tulsa County, Oklahoma.

Petitioner

rehabilitated concrete pavement across the dam and

applied a sealant. Petitioner concluded that this work

substantially prolonged the useful life of the bridge

and materially increased its value.

04-986

Petitioner performed this -project for the ODOT.

Petitioner worked on a bridge at State Highway 1 and

Gaines Creek in Oklahoma. Petitioner rehabilitated the

structural steel, removed old corroded steel, and

applied a protective paint coating designed to prevent

future corrosion.

Petitioner concluded that this work

substantially prolonged the useful life of the bridge

and adapted it to a new or different use.

- 23 04-987

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at State Highway·99 over

State Highway 3 and Creek in Pontotoc'County, Oklahoma.

Petitioner sealed joints, patched the bridge deck, and

retrofitted beam ends. Petitioner concluded that this

work substantially prolonged the useful life of the

bridge.

05-1004

Petitioner performed this project for the ODOT.

Petitioner worked on various steel bridges at

Interstate Highway 44 at 12th and 19th Streets in

i

Oklahoma County, Oklahoma. Petitioner sealed joints,

patched the decks of the bridges, and retrofitted beam

ends. Petitioner also removed existing lead paint (a

perceived hazardous material), blasted the bridges to

remove corrosion, and applied protective paint coatings

designed to prevent future corrosion. Petitioner

concluded that this work substantially prolonged the

useful lives of the bridges and materially increased

their value.

05-1006

Petitioner performed this project for the NTTA.

Petitioner cleaned and sealed pavement joints to

prevent the intrusion of water. Petitioner concluded

that this work substantially prolonged the useful life

of the existing pavement.

'05-1009

Petitioner performed this project for the TxDOT.

Petitioner rehabilitated concrete traffic barrier

walls. Petitioner concluded that this work

substantially prolonged the usefuÍ life of the traffic

barrier walls.

05-1013

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge at State Highway 15 and

the Brazos River in Texas. Petitioner repositioned the

rocker bearing assemblies and installed new stiffeners

so that the bridge would not self-destruct.

(A

- 24 stiffener, sometimes called a gusset plate, is an

accessory to a steel structure that restrains a

distortion of some or all of the steel.)

Petitioner

concluded that this work substantially prolonged the

useful life of the bridge.

05-1017

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on or at Interstate

Highway 35 in Austin (Travis County), Texas. The armor

joints on the bridge were coming loose and the steel

was sticking up in the traffic. Petitioner

rehabilitated the joints and the steel. The bridge

would have been closed without this work. Petitioner

concluded that this work substantially prolonged the

useful life of the bridge.

05-1020

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge in Oklahoma. Petitioner

rehabilitated pavement and joints so that an asphalt

overlay could be ïnstalled properly. Petitioner

concluded that this work substantially 'prolonged the

useful life of the bridge.

05-1022

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge at U.S. Highway 277 and

Valley Creek in Abilene, Texas. Petitioner replaced

the bearing pads on the bridge. Petitioner concluded

that this work substantially prolonged the useful life

of the bridge.

05-1024

- Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge at U.S. Highway 59 in

Lufkin, Texas. Petitioner rehabilitated the bridge

joints.

Petitioner concluded that this work

substantially prolonged the useful life of the bridge

and materially increased its value.

- 25 05-1033

Petitioner performed this project for the NTTA.

Petitioner.worked on pavement.

Petitioner routed and

sealed cracks in the pavement to prevent moisture

intrusion.

Petitioner concluded that this work

substantially prolonged the useful life of the

pavement.

05-1046

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on U.S. Highway 75 in

Grayson County, Texas. Work was also performed on

parts of the railing and the deck. Petitioner cleaned

and sealed joints, patched the bridge deck, and

retrofitted beam ends. Petitioner concluded that this

work substantially prolonged the-useful life of the

,

bridge.

05-1048

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at Interstate Highways 40

and 44 in Oklahoma County, Oklahoma. Petitioner

removed existing lead paint (a perceived hazardous

material), blasted the bridge to remove corrosion, and

applied a protective paint coating designed to- prevent

future corrosion.

Petitioner-also rehabilitated part

of the deck of the bridge. Petitioner concluded that

this work substantially prolonged the useful life of

the bridge and materially increased its value.

05-1049

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at Interstate Highways 35

and 44 in Comanche and Garvin Counties, Oklahoma.

Petitioner sealed joints, patched the bridge deck; and

retrofitted beam ends. Petitioner also removed

existing lead paint (a perceived hazardous material),

blasted the bridge to remove corrosion, and applied a

protective paint coating designed to prevent future

corrosion.

Petitioner concluded that this works

substantially prolonged the useful life of the bridge

and materially increased its value.

.

-- 26 05-1050

Pètitione~r performed' thi's project- for -the: ODOT .

Petitionerzworked on ta bridge ingBeckham County,.

Oklahoma? Petitioner sealed 'joints, - patched thet bridge

deck, and reti-ofitted beam ends. Petitioner also

removed existing-lead paint (a perceived hazardous n .

material) , blasted the bridge to remove corrosion, - and

applied a protective paint coating designed to prevent

future corrosion. Petitioner, concluded that this work

substantially prolonged the useful life of the bridge

and materially increased its .value . 4

05-1051

Petitionersperformed thisa roject for the,City_ of

Forth Worph, Texas.

Petitioner worked on a bridge .on

Rive side' Drive ' in Fort 'Worth. - Petitioner , removed

existing lead paint (a perceived hazardous material) ,

blasted the bridge to remove corrosion, and applied,.a

protective: paigt coating designed to prevent future

corrosion;.

Petitioner concluded that this work

substantiálly prolonged the useful life of the bridge

and materially increased its value.

05-1061

Petitioner performed this project-for the ODOT.

Petitioner worked on a bridge at Interstate Highway 35

and 'the Canadian River in Oklahoma. The expansion

joints-had failed; lallowing the bridges dedk.to spall

and deteriorate andaallowing salttand/or:water to get

to the slab substructure.

(In the construction

industry, the word."spaall" as a noun refers - to a

surface defect and as a~ verb to the breaking up of a

material to create a surface defect.)- -Petitioner

rehabilitated the deck and the joints.

Petitioner

concluded that this work substantially extended the,

useful life of - the bridge .

M Petitioner performe~d thi.s project for- the TxDOT

Petitioner worked on a bridge at.Loop 1,and Gaines

,

Creek in ,Tex'as.: The bearing pads had failed,s and

petit-ioner raised the:bridge, and-sinstalled new and

updated pads to keep the brigige from destroying itself .

- 27 -

Petitioner concluded that this work substantially

prolonged the useful life of the bridge.

05-1063

Petitioner performed this project for the NTTA.

Petitioner changed the bearing pads on the Mountain

Creek Lake Bridge to prevent damage at.the beam/bearing

seat interface.

Petitioner concluded that this work

substantially prolonged the useful life of the bridge.

05-996

Petitioner performed this project for the City of

Tulsa, Oklahoma.

Petitioner worked on the Tulsa

Oklahoma Civic Center. Petitioner rehabilitated and

waterproofed the deck of the civic center. Petitioner

concluded that this work substantially prolonged the

useful life of the civic center.

05-997

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate Highway 10.

Petitioner removed and replaced failing expansion

joints that -were allowing the bridge deck to

deteriorate and letting moisture into the substructure.

Petitioner concluded that this work substantially

prolonged the useful life of the bridge and materially

increased its value.

06-1067

Petitioner performed this project for the TxDOT.

Petitioner*worked on a bridge at U.S. Highway 69 and

Choctaw Creek in Texas.

Petitioner sealed joints,

patched the bridge deck, and retrofitted beam ends.

Petitioner also,removed existing lead paint (a

perceived hazardous material), blasted the bridge to

remove corrosion, and applied a protective paint

coating designed to prevent future corrosion.

Petitioner concluded that this work substantially

prolonged the useful life of the bridge and materially

increased its value.

- 28 4

06-1068

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at State Highway 58 over

the Washita River in Caddo County, Oklahoma.

Petitioner sealed joints, patched the bridge deck, and

retrofitted beam ends. Petitioner concluded that this

work substantially prolonged the useful life of the

bridge.

06-1070

Petitioner performed this project for the City of

Oklahoma City, Oklahoma.

Petitioner worked on the

Oklahoma City Grandstand. The expansion joints and

their supports were failing in various sections of the

grandstand, and petitioner rehabilitated those joints.

Without the rehabilitation, the grandstand would have

been unusable and continuing to self-destruct.

Petitioner concluded that this work substantially

extended the useful life of the structure.

06-1075

Petitioner performed this project for.the TxDOT.

Petitioner worked on a bridge at State Highways 82 and

87 in Texas. Petitioner strengthened and retrofitted

the structural components to help the bridge regain and

maintain its design loads carrying capacity.

Petitioner concluded that this work substantially

prolonged the useful life of the bridge.

06-1076

Petitioner performed this project for the City of

Lawton, Oklahoma. Petitioner worked on a bridge at

Gore Boulevard and Cashe Road in Oklahoma.

Petitioner

sealed joints, patched the bridge deck, and retrofitted

beam ends. Petitioner concluded. that this work

substantially prolonged the useful life of the bridge

and materially increased its value.

06-1079

Petitioner performed this project for the ODOT.

Petitioner worked on a bridge at U.S. Highways 62 and

74 in Oklahoma and Logan Counties, Oklahoma.

Petitioner sealed joints, patched the bridge deck, and

- 29 -

retrofitted beam ends. Petitioner concluded that this

work substantially prolonged the useful life of the

bridge.

06-1080

Petitioner performed this project for the City rof

Dallas, Texas. Petitioner reconfigured the

streetscapes on Field,'St. Paul, and Harwood Streets to

provide better pedestrian movement and safety.

Petitioner concluded that this.work materially

increased the value of the property and adapted the

property to a new or different use.

06-1081

Petitioner performed this project for the City of

Oklahoma City, Oklahoma., Petitioner worked on a bridge

at Cimarron Road over Interstate Highway 40 in Oklahoma

City. Petitioner sealed joints, patched the bridge

deck, and retrofitted beam ends. Petitioner concluded

that this work substantially prolonged the useful life

of the bridge.

06-1082

Petitioner performed this project for the City of

Oklahoma "City, Oklahoma. Petitioner worked on the

Rockwell Avenue Bridge in Oklahoma City. Petitioner

sealed joints, patched the bridge deck, and retrofitted

beam ends.

Petitioner concluded that this work

substantially prolonged the useful life of the bridge.

06-1088

Petitioner performed this project for the ODOT.

Petitioner worked on the Rockwell Avenue Bridge in

Oklahoma. Petitioner sealed joints, patched the bridge

deck, and retrofitted beam ends. Petitioner concluded

that this work substantially prolonged the useful life

of the bridge.

06-1090

Petitioner performed this project for the NTTA.

Petitioner worked on the entrance to a building in'

Plano, Texas." Petitioner modified the entrance to

comply with the ADA. Petitioner concluded that this

- 30 -

work substantially prolonged the useful life of the

property, materially increased its value, and adapted

the property to a new or different use.

06-1094

Petitioner performed this project for the NTTA.

Petitioner rehabilitated concrete pavement and joints'

on a bridge so that an asphalt overlay could.be

installed properly. Petitioner concluded that this

work substantially prolonged the useful life of the

bridge.

06-1095

Petitioner performed this project for CPS Energy.

Petitioner rehabilitated an old trolley bridge on

Mission Road, increasing the load carrying capacity of

the bridge to allow for trucks. Petitioner concluded

that this work substantially prolonged the useful life

of the bridge, materially increased its value, and '

adapted the bridge to a new or different use.

06-1096

Petitioner performed this project for the TxDOT.

Petitioner worked on a bridge on Interstate Highway 20

in Texas.

Petitioner sealed joints, patched the bridge

deck, and retrofitted beam ends. Petitioner concluded

that this work substantially prolonged the useful life

of the bridge.

OPINION

I.

Background

We decide whether the disputed amount is DPGR.

The parties

agree that the disputed amount is DPGR to the extent that

petitioner performed work on projects that erected or

substantially renovated real property.

In addition, the parties

agree that petitioner's work substantially renovated real

property to the extent that:

(1). The work renovated a major

- 31-component or substantial structural part of real property and

(2) the renovations materially increased the value of the real

property, substantially prolonged the usefulalife of the real

property, and/or adapted the real-property to a different or new

use.

Further, the. parties do not dispute that petitioner's work met

the'first prong of this two-part substantial renovation test.'

Our decision therefore turns.on whether petitioner's work erected

property or, to the extent it did not, met the secónd prong of

the test.?

Petitioner argues that it- "erected" or "substantially

renovated" real property and therefore the disputed amount is'

DPGR.

Respondent argues that petitioner's'work falls outside of

the meanings of those terms and therefore the disputed amount is

not DPGR.

We agree with petitioner.

6Respondent concedes in his opening brief that petitioner's

work on the bridges met the first prong but advances no argument

as to petitioner's work on the other types of property. Each of

those other types of property is "real property" within the

meaning of sec. 199 because it is either a building or other

property that is and ordinarily will remain affixed to real

property for an indefinite period. See sec. 1.199-3(m) (2)(i),

Income Tax Regs.; see also sec. 1.263A-8(c) (3), Income Tax Regs.

Furthermore, we find in the record that petitioner's work on

these other types of property renovated a major component or a

substantial structural part of that property. We conclude that

all of the properties in dispute meet the first prong of this

two-part test.

7Hereinafter, we use the term "disputed projects" to refer ,

to the 104 projects discussed supra p. 6, less the 5 of those

projects that petitioner characterizes as repair or maintenance.

- 32 -

II.

Burden of Proof

Respondent determined that none of the disputed amount is

DPGR, and respondent's determination is presumed correct.

See

Welch v: Helvering, 290 U.S. 111, 115 (1933); see also Interstate

Transit Lines v. Commissioner, 319 U.S. 590, 593

(1943)

(stating

that deductions are.a matter of legislative grace for which

taxpayers must prove their entitlement); cf. Helvering v. Bliss,

293 U.S. 144, 150-151 (1934)

(stating that tax provisions should

not be narrowly construed where, as here, they are

"liberalizations of the law in the taxpayer's favor, * * *

begotten from motives of public, policy").

A taxpayer generally

must prove the Commissioner's determination wrong in order to

prevail., See Rule 142(a).

Section 7491(a), however, sometimes

placess the burden of proof upon the Commissioner.

The record allows us to decide-this case without regard to

which party bears the burden of proof.

We proceed to do so.

We

need not 'and do not decide which party bears the burden of proof.

III.

Section 199

A.

Applicable Text

Our substantive analysis begins with the relevant text of

section 199.

(We set forth that text in appendix D.)

Section

199(a) allows a corporate taxpayer such as petitioner to deduct a

percentage (equal to 3 percent for the subject year) of the lesser of (1) its qualified production activities income or

-- 33 -

(2) its taxable income (as computed without regard to the

deduction under section 199(a)).

Section 199(b) (1) limits that

deduction to 50 percent of the wages that the taxpayer pays

during the year.

Section 199(c).(1) defines the term "qualified

production activities income" as the taxpayer's DPGR less the sum

of its cost of goods sold (allocable to the DPGR) plus certain

expenses and other items.

Section 199(c) (4) (A) (ii) provides that

DPGR includes a taxpayer's gross receipts from the construction

of real property performed in the United States if the taxpayer

is engaged in the active conduct.of a construction business and

the gross receipts are derived in the ordinary course of that

business.

Section 199 does not define the phrase "construction of real

property" as its appears in section 199(c) (4) (A) (ii), and it is

the meaning of that phrase that is the focus of our analysis.

The parties do not dispute that petitioner is entitled to a

deduction under section 199(a) to the extent that petitioner's

work on the disputed-projects falls within the meaning'of that

phrase.

Nor do the parties dispute that petitioner's work will

fall within the meaning of that phrase if the work "erected" or

"substantially renovated" real property within the meaning of

section 1.199-3-(m), Income Tax Regs.

- 34 B.

Legislative History

Section 199 was added to the Code by the American Jobs

Creation Act of 2004

(AJCA), Pub. L. 108-357, sec. 102(a), 118.

Stat. 1424, to give domestic manufacturers a tax. deduction for

certain domestic production activities.

The conferees noted that

then-present law did not reduce a corporate taxpayer's income tax

for income from domestic activities and stated that section 199

would provide such a reduction in certain cases.

Rept. 108-755, at 265-275

(2004).

See H. Conf.

The conferees stated that

"construction activities performed in the United States" was one

of those cases, that "activities that are directly related to the

erection or substantial renovation of residential and commercial

buildings and.infrastructure" were "construction activities", and

that "structural improvements, but not mere cosmetic changes,

such as painting" were "substantial renovation".

n.26.

Id. at 271 &

The name of the AJCA and the statute's wage limitation on

the amount of the deduction under section 199(a) indicate that

Congress intended that section 199 create jobs in the United

States and otherwise strengthen the U.S. economy.

IV.

Guidance From the Commissioner and From the Secretary

- A.

Notice 2005-14

On January 19, 2005, the Commissioner released Notice

2005-14, 2005-1 C.B. 498, to provide "interim guidance" on

section 199.

The notice stated that the Secretary was currently

- 35 -

developing regulations- under section 199 and that taxpayers could

rely on the interim-guidance until the regulations were issued.

Id. sec.

1,

2005-1-C.B. at- 502.

As relevant here, Notice 2005-14, sec. 4.04(11) (a) and (b),

2005-1 C.B. at 520, stated that "The term 'construction' means

the construction or erection of real property" and that

Activities constituting construction include activities

performed in connection with a project to erect or

substantially renovate real property, but do not

include tangential services such as hauling trash and

debris, and delivering materials, even if the

tangential services are essential for construction. .

However, if the taxpayer performing construction also,

in connection with the construction project, provides

tangential services such as delivering materials to the

construction site and removing its construction debris,

the gross receipts derived from the tangential services

are DPGR.

Improving land (for example, grading and,

landscaping) and painting are activities constituting

construction only if these activities are performed in

connection with other activities (whether or not by the

same taxpayer) that constitute the erection or

substantial renovation of real property. * * *

Notice 2005-14, sec. 4.04(11) (d), 2005-1 C.B. at 520, stated

that the "term 'substantial renovation' means the renovation of a

major component or substantial structural part of real property

that materially increases the value of the property,

substantially prolongs the useful life of the property, or adapts

the property to a new or different use."

Notice 2005-14, sec.

3.04(11) (d), 2005-1 C.B. at 511, explained as to that meaning:

The Service and Treasury Department believe that the

standard to be applied in determining whether there has

been a substantial renovation of real property is the

standard applied under § 263(a) to determine whether a

l

1

- 36 -

taxpayer's.activities result in permanent improvements

or betterments of property, such that the cost of the

activities must be capitalized * * * [and that the

definition of the term substantial renovation as set

forth in the notice is] consistent with the rules under

§ 263(a)

B.

* * *

2005 Proposed Regulations

On November 4, 2005, the Secretary published proposed

regulations under section 199.

See secs. 1.199-0 through

1.199-8,

Proposed Income Tax Regs.,

70 Fed. Reg.

67240

2005)..

The proposed regulations stated that the final

(Nov. 4,

regulations, when published, would apply to taxable years

beginning after December 31, 2004.

See sec. 1.199-8(g), Proposed

Income Tax Regs.,370 Fed. Reg. 67276 (Nov. 4, 2005).

The

proposed regulations stated that taxpayers could rely on the

proposed regulations and/or the interim guidance set forth in

Notice 2005-14, supra, until the final regulations were published

in the Federal Register.

See id.

The definition of the word "construction" in the proposed

regulations was similar to its definition in Notice 2005-14,

supra.

Section 1.199-3(1) (1) (i) and (2), Proposed Income Tax

Regs.,

70 Fed. Reg.

67254,

67255

(Nov. 4,

2005),

stated that "The

term construction means the construction or erection of real

property" and

Activities constituting construction include activities

performed in connection with a project to erect or

substantially renovate real property, but do not

include tangential services such as hauling trash and

debris, and del-ivering materials, even if the

- 37 -

tangential services are essential for construction.

However, if the taxpayer performing construction also,

in.connection with the construction project, provides

tangential services such as delivering materials to the

construction site and removing its construction debris,

the gross receipts derived from the tangential services

are DPGR. Improvements to land that are not

capitalized to the land (for example, landscaping) and

painting are activities constituting-construction only

if these activities are performed in connection with

other activities (whether or not by the same taxpayer)

that constitute the erection or substantial renovation

of real property * * *

The proposed regulations also followed the definition of the

term "substantial renovation" set forth in Notice 2005-14, supra.

Section 1.199-3(1) (4), Proposed Income Tax Regs., 70 Fed. Reg.

67255 (Nov. 4, 2005), stated that the "term substantial

renovation means the renovation of a major component or

substantial structural part-of,real property that materially

increases the value 'of the property, substantially prolongs the

useful life of the property, or adapts the property to a new-or

different use."

While this -definition adopted some of the

grounds for capitalization under section 263(a) and the

regulations thereunder, see sec. 1.263(a)-1(b), Income Tax Regs.

(stating that an expense is generally -a capital expenditure if

the expense adds to the value or substantially prolongs the

useful life of property owned by the taxpayer or adapts the

property to a new or different use), the proposed regulations did

not explicitly adopt all of those grounds.

The proposed-

regulations, for example, did not explicitly adopt the standard

- ,38 -

of section 1. 263 (a) -2 (a)a, Income Tax -Regs .a athat "The a cost -of

acquisition, construc tion a or eerectiontóf abuildings , machinery

and equipment, furniture and fixtures, rand similar property.

having a useful 11ife asubstantially beyond the ataxable year". is a

capital expenditure .7 -See salso INDOPCO, -Inc

503 U;S. 79,

87-89

(1992)

v . Commiss ioner ,

(holding ,that an expenditure that

produces a significant future benefit is a capitalrexpenditure

under section 263 (a) ) .

C. - '2006 Final" Regulations

a e

On.June T, 2006, the Secretary-published finalaregulations a

under section 199. ¿See secs: -1.199-0 throughe1:199-9, Income Tax

Regs., 71 Fed. Reg. 31283 (June.1, 2006)a.

The afinal regulations

are applicable to taxable years,beginning on or after June 1,

2006:

Seeesec. 'r.199-8(i) (1), Income Tax Regs. 2The final

regulations also - stated, however

•

that a taxpayer could rely on

the final regulati_onsafor taxable years beginning before May 18,

2006, provided that' the taxpayer followed all gf those :final

regulations .

See id.

- The - f~inal regulations tstated that

- y

taxpayers who do not rely. on the final regulations for taxable

years 'beginning before,r June 1, 2006, may rely ori the proposed a

regulations-and/or the interim guidance set forth in Notice 2005-

14, e supra.

See id.e 3

-

Thetfinal regulations stated that "The ,term.constructione

nieansa activities, and services rela'ting tout-he _ construction or

r 39 -

erection of real property".

Regs.

Sec. 1.199-3(m) (i) (1), Income Tax

The final regulations also stated:

Activities constituting construction are activities

performed in connection with a project to erect or

substantially renovate «r~eal property * * *

* * * Activities constituting construction do not

include tangential services such as hauling trash and

debris, and delivering materials, even if the

tangential services are essential for construction.

However, if the taxpayer performing construction also,

in connection with the construction project, provides

tangential services such as delivering materials to the

construction site and removing its construction debris,

then the gross receipts derived from the tangential

services are DPGR.

* * * Improvements to land that are not

capitalizable to the land (for example, landscaping)

and painting are activities constituting construction

only if these activities are performed in connection

with other activities (whether or not by the same

taxpayer) that constitute the erection or substantial

renovation of real property * * *

[Sec. 1.199-3 (m) (2), Income Tax Regs.]

The final regulations further stated (as did Notice 2005-14,

supra, and the proposed regulations) that "the term substantial

renovation means the renovation of a major component or

substantial structural part of real property that materially

increases the value of the property, substantially prolongs the

useful life of the property, or adapts the property to a new or

different use."

Sec. 1.199-3(m) (5), Income Tax Regs.

The final

regulations, like the proposed regulations, did not explicitly

adopt other grounds for capitalization under section 263(a) and

the regulations thereunder.

- 40 -

V.

Expert Testimony

A.

Overview

Each party relies on expert testimony to support its or his

view that petitioner's work is or is not the erection or

substantial renovation of real property.

Petitioner called two

individuals to testify as experts on engineering in the context

of petitioner's business.

Respondent called one individual to

testify as an expert on construction engineering and construction

management.

as an expert.

The Court recognized each of the three individuals

The Court also received into evidence each

individual's written report (as supplemented, in the cases of the

individuals called by petitioner).

See Rule 143(g)

(stating that

an expert witness shall.submit to the Court.a written report that

serves as his or her direct testimony).

B.

Petitioner's Experts

1.

Mr. Gibson

William E. Gibson (Mr. Gibson) was one of petitioner's

experts.

Mr. Gibson is a licensed professional engineer, and he

earned a bachelor of science degree in civil engineering in 1966

and a master of business administration degree in management in

1968.

He has worked with highway and bridge construction for

over 40 years, he has worked with structural rehabilitation for

over 20 years, and he works currently for petitioner as its chief

- 41 -

executive officer."

Mr. Gibson is an active member of many

associations/societies of engineers, and he or petitioner has

received numerous awards for his or its work in the field of

construction.

He has advised Federal and State highway

.

departments on the construction of bridges-and of other

infrastructure.

Mr. Gibson is familiar with the specific work that'

petitioner performed on each of its projects. ~ He reinforced that

familiarity by examining petitioner's documents relating to the

projects and by visiting a substantial number of the jobsites.

He classified the projects into the following groups:

(1) Those

projects which extended the useful life of real property by more

than 3 years;

(2) those projects which increased the value of

real property by more than 5 percent of the component being

worked upon;

(3) those projects that adapted the property or

component to a new or different use; and (4) those projects that

were part of new construction.

He characterized the remaining

projects which did not fall into one of these four categories as

routine maintenance or repairs.

Mr. Gibson concluded from his analysis that petitioner's

work on over 95 percent of the disputed projects was substantial

renovation within the meaning of the final regulations and their

"Mr. Gibson also has a significant financial interest in

petitioner.

- 42.predecessors.

His report, as supplemented, supported his

conclusion with vast amounts of data and with many diagrams,

charts, and pictures depicting the specific construction work

petitioner-performed.

His report, as supplemented, further

supported his conclusion with detailed bid sheets for the

projects and with articles and treatises relating to pavement

preservation, the extension of the useful life of roads and

bridges, the improvement of the condition of bridges, and bridge

management.

2.

Mr. Smith

Douglas L. Smith (Mr. Smith) was petitioner's other expert.

Mr. Smith is a licensed professional engineer, and he earned a

bachelor of science degree in civil engineering in 1983 and a

master of science degree in civil engineering in 1985.

He has

worked with building or infrastructure construction for over 18

years, and he is an active member of various societies of

engineers.

He currently works for a consulting, engineering,

architectural, and material science firm that is unrelated to

petitioner.

He and the firm specialize in investigating and

repairing infrastructure that fails to meet performance

expectations because of deterioration, collapse,, or the like.

The firm's main clients are State highway departments and the

Federal Government.

|

- 43 -

Mr. Smith reviewed all of the disputed projects, including

24 in depth (which represented most of petitioner's gross.

receipts for the subject year), and he visited 11 of the job

sites.

He scrutinized the projects'and bid sheets, and he spoke

to persons who worked on the projects.

He concluded that

petitioner's work on the disputed projects often was required by

deterioration caused by the owner's failure to properly maintain

the real property and that rehabilitation of the real property,

as opposed to repair, was essential to the survival of the real

property;

He concluded that the bridge joints that petitioner

rehabilitated had deteriorated before petitioner's work,. that -the

deteriorated joints were harming other parts of the bridges, and

that petitioner had to tailor its work to protect the structure

of the bridges prospectively.

He concluded that some of

petitioner's work, e.g.', replacement of bearing pads, was

necessitated by design defects in the originally installed parts

and was not routine maintenance.

He concluded that petitioner's

work on pavement in job No. 02-861 (and in another job not in dispute) substantially prolonged the useful life of the pavement

and increased its value.

C.

Respondent's Expert

Respondent's expert was Jeff Ronspies (Mr. Ronspies).

Mr.

Ronspies received a bachelor of science degree in civil

engineering in 1995 and a juris doctorate in 2006.

He worked as

- 44 -

an-engineer from -1995"through 2004,*eandshe-worked as an attorney

for a year and'a,half during 2006 andr2007.

FrodrAuguàt 20Ó7 to

date, he has worked eas,a gen'eral engineer for the-Internals

Revenue -Service, primarily "Gather[ï'ng] 'facts -related to fixed

asset and intangible asset audits a[and] Draft [ing] -reports".used

int administrative appeal of,audits, -and rebuttals to:taxpayer protests of, proposed tax adjustments." ··Mr.; Ronspies is not a

licensed engineer, he is ~not a current member of any engineering;

society

and he has never published a paper on engineering.e-Nor

has.M6. Ronspies ever worked as an engineer on-a construc,tion project involving b idges, roads, or other infrastructure,. other

than in his role as an overseer of a firm's basic- painting

operations.

'Mr. Ronspies'reviewed the bid calculations and the

descriptions of all of petitioner's ,projects, and he -visited 10

of the tjob sites (all within -the Dallas/Fort Worth metropolitan

a-rea). t He concluded that 29 of petitioner's 13,6 projects

-

qualified as substantial renovation of real property within the

meaningrof -the final regulations, and: these 29 projects became :

(and are) the subject of respondent's concession.

Mr. Ronspies

concluded that the remaining projects (i.e., the sdisputed .

projects splus the projects petitioner conceded) were eithér

repair or maintenance or "accounting.anomalies". - The "accounting

anoma·lies", Mr. aRonspies stated;- were ,proj.ects with no receipts,

- 45 -

or job costs for the subject year.

Mr. Ronspies explained that

he characterized projects as repair or maintenance because

petitioner worked on only part of a structure, leaving the rest

of the structure to deteriorate at the same rate as before.

Mr.

Ronspies opined that the.useful life of a structure as a whole

does not change if work is performed on only part of the

structure.

D.

:

General Rules Applicable to-Expert Testimony

Expert testimony is admissible where it assists the Court to

understand the evidence or.to determine a fact in issue.

See

Fed. R. Evid. 702; see also ASAT, Inc. v. Commissioner; 108 T.C.

147, 168 (1997).

The testimony of an expert does-not assist the

Court when the testimony merely expresses a legal conclusion.

See Alumax, Inc. v. Commissioner, 109 T.C. 133,

165 F.3d 822 (11th Cir.-1999).

171

(1997), affd.

Determining whether expert

testimony is helpful to the Court is a matter within the Court's

sound discretion.

See Laureys v. Commissioner, 92 T.C. 101, 127

(1989).

We have broad discretion to evaluate the cogency of an

expert's analysis.

case.

Sometimes, an.expert will help us decide a

See, e.g., Trans City Life Ins. Co. v. Commissioner,

106 T.C. 274, 302 (1996).

Other times, he or she will not.

See,

e.g., Estate of Scanlan v. Commissioner,,T.C. Memo. 1996-331,

affd. without published opinion 116 F.3d 1476

(5th Cir. 1997).

- 46-We weighran ~expert'setestimony in theslight of his"or her

qualifications .and-with, duerregardator all - other credible evîdence

in the record'. . We may embrace or reject an expert's opinion'in

toto, or wesmay pick and choose the 'portions of the opinion we:e

choosexto adopt.

282, 294-295

See Helverin(‡ v. Natl·.2Grocefi Co.

304 U.S.

(1938);; Silverman VD.Commissioner,- 538 F.2d 927;

933

(2d Cir. 1976), affg. T.C. Memo. 1974-285; IT&S of Iowa, Inc:- v•

Commissioner, 97 T.C. 496; 508 (1991) ; Parker-v. Commissioner, 86

T . C . 547, 562

,(198 6 ) .

We - are not bound by an expert ' s . opinion

and wiùì.reject. an exper.tis opinion .to the extent that"it is

.

contrary to thei judgment we form on the basis of our

understanding of the. record as a whole.

See Orth .v.

Commissioner, 813 -F..2d 837, 842 (7th Cir. 1987) , affg. Lio v.

Commiséioner, .85 "T.C. 56 (1985) ; Silverman v. Commissioner, supra

at 933; IT&S of Iowa, Inc. v. Commissioner, supra at 508; Chiu;v.

Commissioner, 84 'T..C. 722, 734

VI.

(1985) .

,Standards "of Substantial Renovation

A.

Applicable Guidance

Section 199 (c) (4) (A) (ii) states that DPGR is derived _from

the "aonstruction 'of real property .performed in the United

States",--but tsectiorì,199 does not define the word "construction".

Petitioner "relies in part upoñ the,final regulations to aésert

that -its -work on. the-disputed projects quali_fies as construction

because -those projects.involvedrerecting or substantially

ai

- 47 -

renovating real property. « Petitioner also relies upon the final

regulations to assert that some of its work substantially

renovated real property because petitioner renovated a major

component or substantial structural part of real property and

that workematerially increased the value of the property,

substantially prolonged the useful life of the property, or

adapted the property to a new or different use.

By their terms, the final regulations are not necessarily

applicable to this case because the subject year began before

June 1, 2006.

The final regulations, however, allow a taxpayer

such as petitioner to rely upon those regulations for taxable

years beginning before May 18, 2006.

Income Tax Regs.

See sec. 1.199-8(i) (1),

Petitioner relies on portions of the final

regulations to support its position.

Petitioner's reliance on

portions of the final regulations means those regulations are

applicable to this case in their entirety.

See id.

Petitioner's

reliance on portions of the final regulations also means that the

other above-discussed guidance from the Secretary and from the

Commissioner is not directly applicable to this case.

B.

Overview

We proceed to decide the meaning of the phrases "materially

increases the value of the property", "substantially prolongs the

useful life of the property", and "adapts the property to a new

or different use", as used in section 1.199-3 (m) (5), Income Tax

- 48 -

Regs.

These phrases had their genesis in the capitalization

rules set forth in section 263(a) and the regulations thereunder.

See Notice 2005-14,

sec. 3.04(11) (d); see also sec.

1(b), Income Tax Regs.

1.263(a)-

The increased value, prolonged useful

life, and adapted use standards contained in those phrases are

measured by reference to the "real property"

(here, primari-ly

infrastructure), inclusive of all of its components and parts.

See sec. 1.199-3(m) (3) and (4), Income Tax Regs.,9 see also sec.

1.199-3 (m) (5), Income Tax Regs.

(using the words "the property"

in reference to the words "real property").

"Sec. 1.199-3(m), Income Tax Regs"., defines the terms "real

property" and "infrastructure" as follows:

(3) Definition of real property.--The term real

property means buildings (including items that are

structural components of such buildings), inherently

permanent structures (as defined in § 1.263A-8(c) (3))

other than machinery (as defined in § 1.263A-8(c) (4))

(including items that are structural components of such

inherently permanent structures), inherently permanent

land improvements, oil and gas wells, and

infrastructure (as defined in paragraph (m) (4) of this

section). * * * For purposes of this paragraph

(m) (3), structural components of buildings and

inherently permanent structures include property such

as walls, partitions, doors, wiring, plumbing, central

air conditioning and heating systems, pipes and ducts,

elevators and escalators, and other similar property.

(4) Definition of infrastructure.--The term

infrastructure includes roads, power lines, water

systems, railroad spurs, communications facilities,

sewers, sidewalks, cable, and wiring. The term also

includes inherently permanent oil and gas platforms.

- 49 The words "real property", in turne are best understood to

refer to each freestanding item of real-property that operates

and performs a discrete function in and of ,itself.

Cf. Smith v.

Commissioner,.300 F.3d 1023, -1030 (9th Cir. 2002)

(holding that

aluminum reduction -cells were sufficiently freestanding to

constitute units of property separate and apart from the

interconnected cell lines in aluminum smelting facility, for

purposes of characterizing the expense of replacing the cell

linings as a repair), affg. Vanalco, Inc. v. Commissioner, T.C.

Memo. 1999-265; Ingram Indus., Inc. v. Commissioner, T.C. Memo.

2000-323-(holding that tugboat engines were not treated

separately from tugboats in determining whether engine repair ,

costs were capital expenditures); sec. 1.263A-10(b) (1), Income

Tax Regs.

(stating that a unit of real property includes any"

components of real-property owned by the taxpayer that are

functionally interdependent):

Thus, the relevant property that

we analyze to measure whether a standard of substantial

renovation is met is generálly each building-, bridge, or other

permanent structure on which petitioner worked.

As the expert

testimony in this case shows, each of the bridges'and the other

real property at issue normally is constructed with a number of

major interrelated components any on'e of which is critical to the

property's overall functionality, and the separate components of

the property'generally do not perform a discrete function in the

- 50 --

setting- of othe property as a whole thattwould aallow the component

to operate and be used.by fitselft.

To théicontrary, the placing -

in service of one compõneñt 3(i.e.+,- the readiness and avai'l'ability

off -that- component for .iter specif ic use). is fsgenerálly:dependent -on

the placing in serviceadf the otherecomponentsrof the bridgetor a

the othere real property. n

C.

Repairs

s «

·

M.

. .

e

The capitalization rules of sectiont 263 (a) and the

regu ations thereunder. do not treat an expense to repair property

as ra, öapital expenditure

Such an expense is not a capit al e

expenditure because¿it fails to increase the avalue or prolong the

useful life "of the property (or adapt the proþerty: to a different

or new use) .

See' Plainf ield-Union Water - Co . v. - Commissioner,

39 T .5C. 333, 338 '(1962) .

Instead; the · rep,air, gènerally keeps .

the property ïn-its ordinarily efficient- operating. condition over

the -useful life for .which it was acquired.

See Ill. -Merchs.

°In Plainfield-Uniõh Wa-ter Co. v. Commissioner, 39, T.C.

333, 338 (1962) , the taxpayer claiméd deductions for the cleaning

and lining of .cement pipe which restored the original watercarrying' aap'acity of the pipes. The'Court held thát the'expenses

were repairs because the taxpayer ,continued to use the property

in 'its riormal coürse of business 'and the useful life "of the water

main was not increased, .nor was it,s strength or capacity

enlianced.

Id.' 'The Court noted thét a repair returns property to

he state it .was before the condition necessi,tating the

expenditùré' afose and does not maké the prop~erty more valuablé,

more useful, or longer lived.

Id. . The Court noted that a

capital èxpeifditurd únder sec . 26;3 (a) generälly results in a

longer lasting.increas,e in the longevity, utility, or worth of

the proÿerty. Id.; see also Norweåt Corp. & Subá.~~v.

Commissioner,

108 T.C. 265, 279-28g (199"/) .

- 51 -

Trust Co. v. Commissioner, 4 B.T.A-. 103, 106 (1926); see also

sec. 1.162-4, Income Tax Regs.

(stating that. "incidental repairs"

do not "materially add to the value of the property" or "appreciably prolong its 1-ife, but keep it in an ordinarily

efficient operating condition" and that "Repairs in the nature.of

replacements, to the extent that they arrest deterioration and

appreciably prolong the life of the property, shall * * * be

capitalized").

Whether an expense is a repair is a factual

determination that turns on a finding that the work did or did

not prolong the life of the property, increase its value, or make

it adaptable to a ditfferent use.

Commissioner, 73 T.C. 168, 178-182

See R.R. Hensler, Inc. v.

(1979).

Sometimes, an expense that would otherwise be characterized

as a repair may be characterized as a capital expenditure if the

expense is part of the property's rehabilitation, modernization,

and improvement.

689-690

See United States v. Wehrli, 400 F.2d 686,

(10th Cir. 1968); Jones v. Commissioner, 242 F.2d 616

(5th Cir. 1957), affg. 24 T.C. 563

(1955).

Such may be so even

if the property was not completely out of service or in total

disrepair.

265, 279-280

-

See Norwest Corp. & Subs. v. Commissioner," 108 T.C.

(1997)

(holding that the costs of removing

asbestos-containing materials must be capitalized because they

were part of a general plan of rehabilitation and renovation that

improved the building); see also Bank of Houston v. Commissioner,

- 52 -

T.C. Memo. 1960-110.

In addition, the Secretary has proposed a ,

regulation under which an expense is a capital expenditure,

rather than a repair, where the property has deteriorated to a

state of disrepair and is no longer functional for its intended

use and the expense returns the property to its former ordinarily

efficient operating condition.

Proposed Income Tax Regs.,

D.

See sec. 1.263(a)-3(e) (2) (iv),

73 Fed. Reg.

12859

(Mar.

10,

2008).

Substantial Renovation Standards

1.

Materially Increases the Value

A taxpayer's receipts may be DPGR if the receipts are

attributable to renovations that materially increase the value of

real property.

See sec. 1.199-3 (m) (5), Income Tax Regs.

Respondent asserts that a material increase in the value of real

property in the context of public works projects requires that

the functional value of the property increase on account of the

project.

We agree.

See Plainfield-Union Water Co. v.

Commissioner, supra at 338.

Each of petitioner's projects may

have materially increased the value of the underlying real

property only to the extent that the. project led to a more

permanent increment in the longevity, utility, or worth of the

property.

Such a permanent increment may have occurred, for

example, if the project rehabilitated a critical component of the

property, thus making the rehabilitation tantamount to replacing

the property as a whole.

- 53 -

An increase in value following a casualty is measured by

comparing the value of the real property after the project with

the value of the real property before the casualty.

Hensler, Inc. v..Commissioner, supra at 180-182.

See R.R.

An increase in

value in other cases is measured by comparing the value of the

real property after the project with the value of the real

property before the project.

See Plainfield-Union Water Co. v.

Commissioner, supra at 337.

In all cases, any increase in value

must be "material" to qualify the receipts as DPGR.

2.

Substantially Prolongs the Useful Life

A project may-substantially prolong the useful life of

property if the project rehabilitates a critical and functional

component of the property and.gives the property a new life

expectancy.

2002).

See Smith v. Commissioner, 300 F.3d 1.023 (9th Cir.

The replacement of a component that is so integral to the

overall functioning of property effectively confers a new

lifespan on the property equivalent to the life of the component.

Id. at.1033.

The useful life of property may be substantially

prolonged where the useful life of the property as a whole was

increased or the replacement of a component effectively increased

the useful life of the property.

An increase in useful life following a casualty is measured

by comparing the useful life of the real property after the

project with the remaining useful life of the real property

- 54 -

before the casualty.

supra at 180-182.

See R.R. Hensler, Inc. v. Commissioner,

An increase in useful life in other cases is

measured by comparing the useful life of the real property after

the project with the remaining useful life of the'real property

before the project.

See Plainfield-Union Water Co. v.

Commissioner, 39 T.C. at 337; Ill. Merahs. Trust Co. v.

Commissioner, .4 B.T.A. at 106.

In all cases, any prolonging of

useful lifem must be "substantial" to qualify the receipts as

DPGR.

3.,

Adapts the Property to a New or Different Use

Property is adapted to a new or different use if the use of

the property after the project is not-consistent with the

taxpayer's intended use of the property before the project.

As

the parties acknowledge, and we agree, such an adaption often

corresponds to a material increase in value or to a substantial

prolonging of useful life.

If a project qualifies as a

substantial renovation under either one of the other two

standards, it is not necessary to determine whether the property

also is adapted for a new or different use.

Job No. 05-1011 is the only project that petitioner

characterized as adapting property to a new or different use

without substantially prolonging the useful life of the property

or materially increasing its value.

There, petitioner was paid

approximately $30,000 to modify a handrail (and to remove and to

- 55 -

replace concrete) to comply with the ADA.

Petitioner concluded

that this work adapted the property to a,new or different use.

We agree.

Petitioner's modification of the handrail allowed

access to the property by those persons to whom the ADA applied,

and the handrail could not have been so used without the

modifications.

We sustain petitioner's conclusion that this

project qualified under section 1-99 without further specific

*

discussion of this project.

VII.

Characterization of Remaining Projects

A.

Overview

We now consider whether petitioner's work on the remaining

disputed projects was the erection or substantial renovation of

real property.

We do so on a project by project basis. - We are

aided by the testimony of Messrs". Gibson and Smith, both of whom

are licensed, well-credentialéd, and knowledgeable longtime

prominent professional engineers in the fields of highway and

bridge construction and structural rehabilitation.

We heard them

and perceived them to be more knowledgeable and reliable than Mr.

Ronspies on the matter at hand, and we find the testimony of

Messrs. Gibson and Smith to be sincere and most persuasive."

"Of course, we recognize that the interests of petitioner

and Mr. Gibson overlap in that he is petitioner's chief executive

officer and has a significant financial interest in this matter.

We have taken those considerations into account in our evaluation

of his testimony and have concluded that his testimony was

sincere and credible.

- - 56 Mr. Ronspies, on thee other hand, ' lacks sany practical experiences

in roads and . bridge a construc t ion., - and we dec line' to . ac capt his

testimony ont that subjecteto the extent thatrit, conflicts with

the testimony of Messrs. ,Gibson and Smith.

-We.note .as to Mr.

Ronspies 3 that he ult imately agreed - that .7 ofepet it ioner ' s 10 m

bridge .projects that: he visited. qualified under 'section7199^ and acknowledged thatchis-opinion as to the qualification of

petitioner's remainirig projects might haveschanged hadshe:visited

them as well.

Petitioner asserts .that its work on each disputed' project

erected real property.or-substantially renovated real property.

We -agree.: Petitioner terected real.property in job Nos. 04-937 (a

blast fence) , 04-965 (additional lanes and driveways) , 04-971 (a

ramp)

05-1002 (a- traffic rail and .a bridge deck), 05-1043 ;

(additional turn lanes), and 06-1069- (a retaining wall) .9

In,

the other projects, petitioner: . (1) Renovated major components

or substantial structural parts of infrastructu,re;

(2) addressed

design errors or construction flaws by restòring infrastructure to perfqrm efficient-ly as intended;

(3) allowed infrastructure to

be put back in service after damage or severe deterioration; -(4)a

returned a major cornponent from a deteriorated state, either from

age, exposure, or casualty loss, to its former operational

Mr. Ronspies ,now agrees that job No. 04-937 -qualifies

under sec. 199.

- 57 -

efficiency;

(5) abated environmental hazards, e.g., by remóving

or encapsulating lead paint; and/or (6) brought infrastructure

into compliance with laws such as the ADA.

Petitioner'.s work on

these other projects effected the renovation of a major component

or substantial structural part of real property, and we conclude

from our description of each project (as set-forth in our

findings of fact and in appendixes A, B, and C) and our

consideration of the expert testimony of Messrs. Gibson and Smith

that the work materially increased-the value of the real property

and/or substantially prolonged the useful life of the real

property.

B.

Conclusions as to Specific Projects

1.

Casualty Projects

-

The 18 casualty projects in dispute involved petitioner's

work on damaged infrastructure (mainly bridges) that either were

completely inoperativ'e "(e.g., not.open to traffic) or not fully

operative.

Petitioner restored the integrity of the

infrastructure through substantial structural rehabilitation that

allowed the infrastructure to function as intended for many years

thereafter.

Much of the infrastructure was of little to-no use

without petitioner's:work.

Petitioner's final contract amount

for each project ranged from $11,500 to $640,994.

We conclude from the record at hand that the functionality

and dollar values of the real property underlying most of the

- 58 casualty projects increased substantially on account of

petitioner's work.

We also conclude that for those projects, and

for each of the other casualty projects for which petitioner does

not assert a material increase in value (specifically, job Nos.

05-1023, 05-999, 06-1074,

06-1078, 06-1084, 06-1087, and

06-1091), that petitioner's work substantially prolonged the

useful life of the infrastructure.

2.

New Construction-and Rehabilitation Projects

The remaining 80 projects in dispute (i.e., the 86 remaining

projects in dispute less the 6 projects that erected real

property) involved work that petitioner performed primarily as a

subcontractor, which petitioner ,calls "New Construction", and

work that petitioner performed as a contractor rehabilitating

dilapidated real property, which petitioner calls "Rehabilitation

Projects".

While petitioner places these projects into two

categories primarily on the basis of its role as a contractor or

a subcontractor,.we do not.do similarly.

Each project ultimately

involves the rehabilitation of dilapidated real property, and.we

do not think the characterization of petitioner's work is any

different just because petitioner performed its work as a

contractor versus a subcontractor.

To be sure, petitioner's work

on the "new projects" was just as new as its work on the

"rehabilitation projects".

- 59 -

Petitioner concluded that its work on each of these projects

substantially prolonged the useful life of the underlying real

property.

We agree."

That real property (typically bridges)

had deteriorated to a state of disrepair on account of a lack of

proper maintenance, and the real property was no longer

functioning as intended.

Petitioner significantly improved and

solidified the integrity of the dilapidated bridges and the other

real property through petitioner's renovation and redesign of

major structural components thereof (e.g., beams and joints), and

petitioner performed other -services such as corrosion protection,

pavement rehabilitation, and expansive joint rehabilitation.

Petitioner's work enhanced the operating condition of the real

property for many years into the future..Mr. Gibson concluded ·

that each of these projects increased the useful life of the real

property by more than 3 years, and we find that conclusion

persuasive taking into account the specialized work petitioner

did on each project and the final contract amounts (ranging from

$3,990 to $2,748,957) for these projects."

"Petitioner also concluded that its work on 16 of these

projects materially increased the value of the underlying real

property. We need not consider this conclusion given our

agreement with petitioner's primary conclusion.

"As to one of the projects in issue, job No. 03-921,

petitioner's sole work was "patching" the deck of the bridge.

While this work in and of itself would appear to be routine

maintenance, petitioner performed this work as a subcontractor on

a larger project that rehabilitated the bridge. Given the

(continued...)

- .60 --

a C., :Additional Rationalet for AlltPio†ects n

.

Respondent rargues that petitioner';s work :on -the càsualt y e

4

proj ects I"merely-brought :the -bridges back to .their, normal

operating condition" and 'that .petiti'oner' s work on the new

construction-and rehabilitation" projects was routine maintenance.

We ndisagree .

Petitione'r' s. work on many of, thesproj ec ts was .a e 2

critical and ess_ential: to the we'll-beingsand future.operation of

the s truc ture s underlyinge the proj ect s ... .Pe t it ioner , f or -example ,

removed> and replaced athe -joints on abridges because the old joints

were -failing from lack sof proper maintenance and threatening the.

structure of each og the bridges as a whole.

Similarly, -

petitioner replaced damaged or deteriorated beams -with new beams

to give the bridge its requisite support.

Likewise, -petitioner

rehabilitated a b-eam using: specialized materials and procedures

such as epoxy, heat, and mechanical force.

Mr. Gibson explained that petitioner performed six types of

specialized work on the disputed projects and that this work

either (or both) substantially prolonged the useful life. of the a

structure underlying the project or materially. increased, its

value.

Mr.4Gibson listed thiá- work as córroâion protection,

concrete structural

enovation, steel structural renovation

.

( .a continued)

additional facts that pe.titioner's final contract amount for this

job was $105, 646 and that the job was paid for with Federalz a

funds, we conclude that.petitioner's work was part of a

a

substantial renovation of the bri<‡ge and classify it as such.

- 61 -

pavement rehabi-litation, implementation of structure redesign,

and expansion joint rehabilitation.

He described each of these

types of work as follows:

Corrosion protection:

Involves the

removal of all rust- and corrosion onethe

existing structural steel components and then

the application of a three ecoat corrosion protection system to the structure. The

three coat process involves a base layer of

zinc to protect the steel from-rust, a second

epoxy layer to protect the base layer, and a

final UV layer to protect the epoxy layer.

The deteriorated steel beam ends must be

removed and replaced before the cleaning and

painting takes place.

(A beam end is the

portion of the beam beneath a joint in the ,

deck of the bridge.) This protection

generally allows the load carrying capacity

of a bridge to be increased to its original

limits and extends the useful life of the

structure.

Concrete structural renovation:

Involves a structural renovation of a

concrete bridge. Without the renovation, the

bridge does not function as originally

designed (e.g., some lanes must be closed to

traffic).

Steel structural renovation:

Involves a

structural renovation of steel on a bridge.

Without the renovation, the bridge does not

function as originally designed (e.g., some

lanes must be closed to traffic). This.work

extends the useful life of the bridge.

Pavement rehabilitation:

Involves the

joint and spall rehabilitation of the

pavement of a bridge. This process extends

the useful life of the bridge by 10 to 15

years.

Implementation of structure redesign:

Involves three different types.of projects.

The first type involves the strengthening of

- 62 -

s t ruc turals s t ee l, . the replacement lo f , spal-le'd a

concrete, the installation of new bearing

c p'ads, an'd-the painting of theobridges (The bearings on a bridge allow the bridge to

expand, contract, flex, and vibrat e without a

transfer-of the resulting,stress into

adj acent :suppor;t elements . ); eThes second type

involves othe r replacement of.' an ~cild abridge : by.

-a:new, longer,- and wider bridge. eThis is a e

done by -removing -the old bridge deck, adding

shear -connectors to the steel stringers (too

increase the l'oad carrying -capacity) p

- cleaning and painting the bridge, .moving the

new bridge 'into position, and pouring

concrete to serve as ther deck of the bridge.

(A stringer is as steel 'beam spannitig

lengthwise in a' bridge.)

The thirditype .

einvo'lvesaraising sa. bridge to increase the

clearance betw.een the bottom of the bridge

and the roadway below.

Expansion joint: rehabilitation ¯ This

involve s a rehab~ilitat ing de teriorated

expansion joints to increase the useful life

of the bridge.

'Mr. Ronspieš opined that petitioner's swork was primarily

routine maintenance, and he identified the following types of

work performed by .petitioner as routine maintenance:

(1) Joint

replacement (because, he stated, joints do not -have the expected

life of the concrete or structural steel bridge -spans, and it is

recommended that joints be greplaced regularly) ;. (2) e

rehabilitation or replacement of bridge bearings (because, he

stated, this work i

typically performed as part of ,a scheduled

maintenance pi-ogram) ;

(3) patching.of concrete -or asphalt by

removing deteriorated concrete and replacing it with new material

(because, he stated, therpat ch material does:;not increase ,the

- 63 -

life of the surrounding material);

(4) painting (because, he

stated, this work is typically performed as part of a scheduled

maintenance program); and (5) installing stiffeners and other

structural steel (because, he stated, this work does not increase

the capacity of the bridge). :We'disagree that these categories

of work, as performed by petitioner, are routine maintenance.

Mr. Gibson visited many of the job sites of the disputed

projects, and he was the individual who was most familiar:.with

the specific work that petitioner performed.

He testified

persuasively as to the type, extent, and significance of the work

that petitioner performed on each project.

He testified

persuasively that Mr. Ronspies failed to understand ther type,

extent, and significance of the work that petitioner performed on

the projects.

In addition, Mr. Gibson explained that the bridges on which

petitioner worked were dilapidated because they had not been

properly maintained and that petitioner could not simply repair

the bridges but had- to ~rehabilitate the bridges significantly.

He also explained that petitioner's addition of a protective

"For example, Mr., Ronspies viewed job No. 05-1028 as a

simple paint job, and he viewed job No. 06-1089 as isolated

asphalt repairs and some new expansion joints. Mr. Ronspies'

view was blurred as to both jobs.

In the former job, the ODOT

paid petitioner approximately $266,000 to remove a perceived

hazardous material, to blast a bridge to remove corrosion, and to

apply a protective paint coating., In the latten job, the TxDOT

paid petitioner approximately- $65,000 to rehabilitate the joint

and spall of pavement.

- 64 -

coating to a bridge is significantly different and more

sophisticated and extensive than the outdated basic type of

painting job with which Mr. Ronspies was familiar."

Bridges,

Mr. Gibson stated, used to be painted with materials that have

now been established to be hazardous to the environment and to

human health, and the trend in the last decade or two has been to

apply a protective coating to a bridge instead of simply painting

it.

He explained that the protective coating is designed to last

approximately 20 or more years without any additional maintenance

and that failing to coat can cause beams to rust, thus resulting

in the bridge not being usable anymore.

His testimony was echoed

in many regards by Mr. Smith's testimony.

As respondent would have it, the rehabilitation of one or

more components of real property would be a repair unless all of

the property's major components were replaced.

Such is so, Mr.

Ronspies stated, even if the new component was (or components

were) superior to the old component(s).

view.

We disagree with this

First, as discussed supra pp. 50-52, we do not understand

such a principle to apply to repairs in general.

Second,

petitioner concludes (and we agree) that petitioner's renovation

of major components often extended the useful life of the

"Mr. Ronspies worked for a limited time as an overseer of a

construction company's painting operations.. Those operations

were the basic type of painting that Mr. Gibson opined was

routine maintenance and was not the contemporary painting that

Mr. Gibson stated was a substantial renovation.

- 65 -

structures as a whole on account of the intricate interaction of

all of the components.

Petitioner's work on a part of a

structure resulted in a more permanent increment in the

longevity,. utility, and worth of the structure as a whole which,

in turn, increased the useful life of the overall structure.

Smith v. Commissioner, 300 F.3d'at 1033-1034.

See

Third, Messrs;

Gibson and Smith opined persuasively that a bridge usually does

not deteriorate evenly throughout its-life but that certain

sections of the bridge deteriorate faster than others on account

of their location on the bridge and their exposure to the

weather, among other reasons.

Fourth, Mr. Smith explained that a

repair of infrastructure or other similar real property is

typically an expense that the designer anticipated as part of the

property's regularly scheduled maintenance program and that such

maintenance was not done here'.

He stated that the lack of normal

or routine maintenance and the resulting deterioration of a

single component of infrastructure may make the overall

infrastructure unusable because it is unsafe.

He stated that

work such as petitioner.'s which is aimed specifically at

components of infrastructure that -have been allowed to

deteriorate to a state of disrepair therefore significantly

prolongs the useful life of the infrastructure as a whole.

Respondent argues that petitioner cannot prevail because it

has not established with any specificity that its work materially

I

66 -

increased "the value or substantially prolonged, the:useful life of

the disputed property.

-We disagree

Although-'the redord may not

allow us to pinpoint «the ekact increasesain-väluelor usefulalife

on account of petitioner's work, suffice it toisayathat

he

record -supports petitioner's conclúsionethat thesapplicable

standards were:met for reach disputed project.n 'The-bid.sheetà

show the scope of petitioner's work and the dollarramountsrof its

projects, and petitioner'is:useeof ;the-3-year and:5-percent

benchmarks is areasonable -in the rsetting at hand to eätablish that

peti idner's work -substanttially, increased thes value,'cap.acity,

efficiency,, strenggh, and/or quality of each of the items of real

property underlying the idisputed projects.

All the same, Mr. Gibson, on behalf of petitioner, analyhed

each project and-ascertained whether the work on teach project

a

- materially, increased the value of property -or substantially.

prolonged its useful-life.

(We have included in'our.description

of each project petitioner's conclusion.as to whether the project

materially increased the value.of property and/or substantially

prolonged its useful life.)

He explained that maintenance

projects are anticipated by the designer, and included ins aan

regularly .scheduled maintenance, plan fand considered when

determining the:life.of the structure.

He ,explained that

regularly.scheduled ymaintenance was lacking-as.·to many>of- the

"The same is true as to a material increase in us'eful life.

- 67 -

structures underlying the disputed projects.

He explained that

the value of a bridge declines from $400,000 to zero over 40

years if it has little or no maintenance, but with $200,000 of

rehabilitation work after 30 years, the value increases from

$100,000 to $300,000 and the life of the bridge is extended from

40 years to 60 years.

He concluded that petitioner's major

rehabilitation work on a bridge increased each bridge's value by

the cost of the rehabilitation work and prolonged the bridge's

useful life by 20 years.

We accept that rationale and understand

it to apply with equal strength to petitioner's nonbridge

properties as well.

VIII.

Conclusion

We conclude that petitioner's projects qualify under section

199 to the extent stated herein."

All arguments for a different

conclusion have been considered, and those arguments not

discussed herein have been rejected as without merit.

To take

into account the parties' concessions,

Decision will be entered

under Rule 155.

"Our conclusion is consistent with the legislative intent

for sec. 199 (e.g., petitioner hired additional employees in

years after the subject years) and with 23 U.S.C. sec. 116 (2006)

(the Secretary of Transportation presumably concluded that

petitioner's projects subject to that title were a cost-effective

means of extending the useful lives of Federal-aid highways).

- 68 APPENDIX A

Casualty Projects

Job No.

General Type of Work

Final Contract

Amount

05-1021

05-1023

05-1025

05-1029

05-1045

05-1054

Bridge rehabilitation

Highway sign shoring

Bridge rehabilitation

BEidge rehabilitation

Bridge rehabilitation

Bridge rehabilitation

$640,994

22,114

77,240

28,200

395,337

49,000

$347,837

17,114

77,240

28,200

395,337

49,000

-

*

*

*

*

*

*

*

*

*

*

*

-

05-1056

05-1059

Bridge rehabilitation

Bridge rehabilitation

31,935

43,200

-

*

*

Highway repair

398,234

05-1064

Bridge rehabilitation

141,785

05-1065

Bridge rehabilitation

73,000

05-999

06-1072

Bridge rehabilitation

Bridge rehabilitation

79,668

40,853

06 1073

06-1074

06-1078

06-1084

06-1087

06-1091

Bridge

Bridge

Bridge

Bridge

Bridge

Bridge

25,884

24,901

24,900

39,830

112,000

11,500 #

*

*

*

*

*

*

-

-

05-1060

31,935

43,200

398,234

140,850

73,000

6,000

40,053

25,784

24,910

24,025

39,830

1,950

11,500

1,775,999

#:

RM:

UL:

V:

DU:

*:

rehabilitation

rehabilitation

rehabilitation

rehabilitation

rehabilitation

rehabilitation

Revenue Earned

in Subject Year RM UL V

-

'

-

-

-

*

-

*

-

*

*

-

*

*

*

*

*

*

Project paid for with Federal funds

Repair or maintenance

Substantially prolonged useful.life of real property

Materially increased value of real property

Adapted real property to different or new use

Category or categories to which petitioner assigned project"

DU

-

-

-

- 69 APPENDIX B '

New Construction Projects

Job No.

General Type of Work

Final Contract

. Amount

03-906

03-921

03-926

04-937

04-954

04-955

04-956

04-959

04-965

04-967

04-968

04-971

04-981

04-982

05-1000

05-1002

05-1003

05-1011

05-1018

05-1019

05-1028

05-1032

05-1036

05-1037

05-1038

05-1043

05-1047

05-1052

05-1057

05-995

06-1069

06-1071

06-1085

06-1089

06-1093

Misc

Bridge work

Bridge work

Bridge work

Built blast fence

Bridge work

Bridge work

Bridge work

Bridge work

Highway work

Bridge work

Building work

Built airport ramp

Bridge work

Bridge work

Bridge work

Bridge work

Bridge work

Modified handrail

Bridge work

Bridge work Bridge work

Bridge work

Bridge 'work

Bridge work

Bridge work

Highway work

Bridge work

Airport terminal work

Bridge work

Bridge work

Built retaining wall

Bridge work

Culvert work

Bridge work

Bridge work

---

$85,014 #

105,646 #

62,050 #

2,323,112 #

77,313 #

73,868 #

178,661 #

504,241 #

357,883 #

153,863 #

112,536

406,322

250,166 #

483,936 #

41,456 #

140,094

1,391,452

29,985

41,992 #

264,204

266,800 #

11,328 #

422,372 #

178,360 #

169,012 #

747,602 #

122,000

2,261,192 #

57,100 #

86,606

154,273

64,530 #

45,823

65,592 #

908,143 #

329,273

#:

RM:

UL:

V:

DU:

*:

Revenue Earned

in Subject Year RM UL V

-0$20,000

-0(2,405)

500

-0159,340

(5,480)

(1,484)

-0-0-066,072

442,948

41,456

1

1,034,097

27,485

37,992

264,204

6,000

11,328

35,290

110,825

110,700

25,280

122,000

1,944,968

100

86,606

154,273

11,000

45,823

58,425

2,000

329,273

5,138,617

Project paid for with Federal funds

Repair or maintenance '

Substantially prolonged useful life of real property

Materially increased value of real property

Adapted real property to different or new use

Category or categories to which petitioner assigned project

*

-

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

-

DU

*

*

*

*

*

*

*

*

*

*

-

*

*

*

*

-

*

*

-

- 70 APPENDIX * Ca

Rehabilitatione Pro-jects, ;

Job No.

-General Type of Work

02 -861

03 -874

Airport . pavement work.

Bridge .work

03-890

Bridge work

03-902

Bridge work

03-915

04-950

04-951

Bridge work

Bridge work

Bridge work

04-958

04-960

Bridge work

Bridge work

04-961

Bridge wofk

04-969

04-970

04-98:3

0 4 - 985

Bridge work

Bridge work

Bridge Nork

Brei dge work

04-986

04-987

05-1004

Bridge work

Bridge work

Bridge work

05-1006

05-1009

05-1013

05-1017'

05-1420

05-1022

05-1024

05-10.33

Pavement wor

Trafficibarrier wall.

Bridge work .

Bridge work

Bridge work

Bridge work

Bridge work

Pavement work

05-1046

05-1048

05-1049

05-1050

05-1051

05-1061

Bridge work,

Bridge work

Bridge work

Bridge work

Bridge work

Bridge work

05-1062

05-1063

05-996

05-997.

Bridge work

Bridge ork

Work on Civic center

Bridge work

06-1067

06-1068

06-1070

06-1075

06-1076

06-1079

06-1080

06-1081

06-1082

06-1088

06-1090

06-1094

06-1095

06-1096

Bridge work

Bridge work

Work on grandst'and

Bridge work

Bridge work

Bridge work Streetscape work

Bridge work

Bridge work

Bridge work Modifi'ed entranãeway

Bridge work

Highway work

Bridge work

Final Contract

Amount"

$2, 011, 996 #

356,500 #

159, 722 #

291, 789 #

653 , 395 #

2 481, 935 #

179,000 #

620,622 #

47,870

173, 378

48,086 #

534,083 #

3,990

535, 148 #

161,819

19,981 #

145,174 #

719, 924

294, 863

18,600

174,716

724, 352 #

24,868

167, 198

116, 815

294,788

959,694 #

543, 670 #

537, 943 #

256,122

,370,929 #

64,649

, 1,180,258

99, 901

432, 030

37,079

51,179

23,400

950,931 #

.

89,298

434,498 #

- 2,748,957 #

131,147

123,4222

549,490 #

24,971

1,102,617

159,375

3219 910

Revenue Earned

in Subject Year RM UL V

.-

DU

-0 *

-0*

- o$21, 810 n *

. (1, 885)

** 18 , 00 0

*

- r79, 520

*

*

*

-0

*

*

-0*

*

-7-,0*

*

2, 260

* - *

297

*

140,659

* - -0*

65, 259

*

*

-0,*

*

11

*

7,713

*

*

540, 103

*

236, 185

*

18,600

s*

174,_716

*

681 101 .

*

21,368

*

167, 198

*

*

116, 815

*

294,788

*

97,531

*

*

53, 478

*

327, 661

*

*

256,122

*

*

164,449

*

6k,649

* - 784,069

*

2, 336

- *

159, 935

*

* . 37,079

*

*

500

*

23,400

*

163,395

*

89,298

- -*

*

3,,000

*

-0- - *

*

67,269

* .122, 892

*

3,000

-¯ *

24,971

*

*

*

-0-

-

-

*

*

*

1,000

5,030,552

-

*

-

-

-0-

*

-

-

!

- 71 #:

RM:

UL:

V:

DU:

*:

Project paid for with Federal funds

Repair or maintenance

Substantially prolonged useful life of real property

Materially increased value of real property

Adapted real property to different or new use

Category or categories to which petitioner assigned project

-'72 APPENDIX D

SEC.

199 .

IN~COME ATTRIÎ3UTAB E TO DOl ES IC PRODU T ON

ACTIV];TIEŠ.

(a) Allowance of Deduction.-(1) In general.--There shall be allowed

as a deduction an amount equal to 9 percent

of the lesser of-(A) the qualified production

activities income of the taxpayer

for the taxable year, or

(B) taxable income (determined

without regard to this section) for

the taxable year.

(2)

Phasein. ---In the case of any

taxable year beginning after 2004 and before

20103 paragraph (1) shall be applied by

substituting for the percentage contained

therein the transition percentage determined

under the following table:

For taxable years

beginning in:

The transition

percentage is:

2005 or 2006

2007, 2008, or 2009

3

6

(b) Deduction Limited to Wages Paid. -E

(1) In general.--The amount of the

deduction allowable under subsection (a) for

any taxable year shall not exceed 50 percent

of the W-2 wages of the taxpayer for the

taxable year.

*

*2

*

. *

*

*

*

(c) Qualified Production Activities Income.--For

purposes of this section-(1) In general.--The term "qualified

production activities income" for any taxable

•

- 73 -

year means an amount equal to the excess (if

any) of-(A) the taxpayer's domestic

production gross receipts for such

taxable year, over

(lB) the sum of-(i) the cost of

goods sold that are

allocable to such

receipts, and

(ii) other expenses,

losses, or deductions

(other than the deduction

allowed under this

section), which are

properly allocable to

such receipts.

*

*

*

*

(4) Domestic production gross receipts.-(A) In general.--The term

"domestic production gross

receipts" means the gross receipts

of the taxpayer which are derived

from--

*

*

*

*

*

*

(ii) in the case of

a taxpayer engaged in the

active conduct of a

construction trade or

business, construction of

real property performed

in the United States by

the taxpayer in the

ordinary course of such

trade or business * * *

*

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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