Edward R. Arevalo v. Commissioner

124 T.C. No. 15UNITED STATES TAX COURT
EDWARD R. AREVALO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13272-04. Filed May 18, 2005.
P entered into a contract with American
Telecommunications Co., Inc. (ATC). Under the terms of
the contract, P paid $10,000 to ATC and ATC provided P
with legal title to two pay telephones (pay phones). P
also entered into a service agreement with Alpha
Telcom, Inc. (Alpha Telcom), the parent company of ATC,
under which Alpha Telcom serviced the pay phones and
retained most of the profits.
1. Held: Because P did not have the benefits and
burdens of ownership with respect to the pay phones, P
did not have a depreciable interest in the pay phones.
Therefore, P is not entitled to claim a deduction for
depreciation with respect to the pay phones in 2001.
2. Held, further, because P’s pay phone
activities did not obligate him to comply with the
requirements set forth in either title III or title IV
of the Americans with Disabilities Act of 1990, Pub. L.
101-336, 104 Stat. 353, 366, P’s $10,000 investment in
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the pay phones is not an eligible access expenditure.
Therefore, P is not entitled to claim the disabled
access credit under sec. 44, I.R.C., for his investment
in the pay phones in 2001.
Edward R. Arevalo, pro se.
Catherine S. Tyson, for respondent.
OPINION
COHEN, Judge: Respondent determined a deficiency of $1,999
in petitioner’s Federal income tax for 2001 that was attributable
to respondent’s disallowance of depreciation deductions and tax
credits claimed by petitioner with respect to two public pay
telephones (pay phones). In an amendment to answer, respondent
asserted an increased deficiency of $30,247 and a penalty of
$6,049 under section 6662 as a result of petitioner’s failure to
report income from dividends and stock sales. After concessions
by the parties, the issues for decision are:
(1) Whether petitioner is entitled to claim a deduction for
depreciation under section 167 with respect to the pay phones in
2001 and
(2) whether petitioner is entitled to claim a tax credit
under section 44 for his investment in the pay phones in 2001.
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
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all Rule references are to the Tax Court Rules of Practice and Procedure.
Background
This case was submitted on a stipulation of facts and
supplemental stipulation of facts, and the stipulated facts are
incorporated in our findings by this reference. Petitioner
resided in Austin, Texas, at the time that he filed his petition.
Petitioner’s Investment in the Pay Phones
On June 7, 2001, petitioner entered into a contract with
American Telecommunications Co., Inc. (ATC), a wholly owned
subsidiary of Alpha Telcom, Inc. (Alpha Telcom), entitled
“Telephone Equipment Purchase Agreement” (ATC pay phone
agreement). Under the terms of the ATC pay phone agreement,
petitioner paid $10,000 to ATC, and ATC provided him with legal
title to the “telephone equipment” that was purportedly described
in an attachment to the ATC pay phone agreement entitled
“Telephone Equipment List”. The attachment, however, did not
identify any pay phones subject to the agreement. The ATC pay
phone agreement also included the following provision:
1. Bill of Sale and Delivery
a. Delivery by Seller shall be considered complete
upon delivery of the Equipment to such place(s) as are
designated by Owner.
b. Owner agrees to take delivery of Equipment within
(15) fifteen business days. If Seller has not
delivered the equipment within (90) ninety days, Owner
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may terminate this Agreement upon Seller’s receipt of
signed notice from Purchaser.
c. Upon delivery, Owner shall acquire all rights,
title and interest in and to the Equipment purchased.
Exhibit E, “Buy Back Election”, to the ATC pay phone
agreement stated:
1.0 Buy Back Election: Should Owner elect to sell any
telephone equipment, itemized in Exhibit “A”, American
Telecommunications Company, Inc., (hereinafter
“Seller”), agrees to buy back such equipment from
Owner, according to the following terms and conditions:
1) If exercise of the buy back election occurs in the
first thirty-six months after the equipment delivery
date, the re-sale price shall be the Owner’s original
purchase price of $5,000.00, minus a “restocking fee”
of (10%) ten percent of the purchase price; 2) If the
buy-back election is made more than (36) thirty-six
months after the equipment delivery date, the sale
price shall be the Owner’s original purchase price of
$5,000.00, and there shall be no “restocking fee” for
Purchaser’s election to re-sell the equipment purchased
back to Seller. This “Buy Back Election” shall expire
on the (84th) eighty-fourth month anniversary of
Owner’s equipment delivery date. 3) Seller, or its
designee, reserves the right of first refusal as to the
telephone equipment. If Owner enters into an agreement
to sell the telephone equipment to any third party,
Seller, or its designee, shall have thirty (30) days to
match any legitimate offer to purchase said equipment
received by Owner.
Exhibit E further stated:
4.0 Maintenance Requirements For Buy Back Provision:
If Purchaser elects to require Seller to re-purchase
the Pay Telephone Equipment, Purchaser must establish
to Seller’s satisfaction that all repairs and
maintenance, as set forth in Exhibit “B”, have been
performed as required. This means that the regular
maintenance “recommended” in Exhibit “B” is mandatory.
Purchaser will establish that regular maintenance and
repairs have been performed on the Equipment by
maintaining a logbook. The logbook must set forth the
dates and times maintenance and repairs were made to
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the Equipment, who performed the repairs and
maintenance, and by retaining receipts and cancelled
checks for all parts, service, and repairs made to the
Equipment. Purchaser will be required to surrender, to
Seller, the logbook and all other proof establishing
that required maintenance and repairs were performed.
Purchaser must also establish to Seller’s satisfaction
the person(s) who performed the repairs and maintenance
were qualified to do so.
Exhibit B to the ATC pay phone agreement set forth a
recommended schedule of weekly maintenance work to be performed
on the pay phones by petitioner. Exhibit C to the ATC pay phone
agreement included a list of service providers available to
maintain the pay phones should petitioner not want to service the
phones himself. Petitioner also had the option to enter into a
service agreement with Alpha Telcom (Alpha Telcom service
agreement) if he did not want to be involved in the day-to-day
maintenance of the pay phones.
Under the terms of the Alpha Telcom service agreement, Alpha
Telcom agreed to service and maintain the pay phones for an
initial term of 3 years in exchange for 70 percent of the pay
phones’ monthly adjusted gross revenue and all “dial around fees”
generated by the pay phones. In the event that a pay phone’s
adjusted gross revenue was less than $194.50 for the month, Alpha
Telcom would waive or reduce the 70-percent fee and pay
petitioner at least $58.34, so long as the equipment generated at
least that amount. In the event that a pay phone’s adjusted
gross revenue was less than $58.34 for the month, petitioner
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would receive 100 percent of the revenue. Notwithstanding the
terms of the Alpha Telcom service agreement, Alpha Telcom made it
a practice to pay $58.34 per month per pay phone regardless of
how little income the pay phone produced. Additionally, under
the Alpha Telcom service agreement, Alpha Telcom negotiated the
site agreement with the owner or leaseholder of the premises
where the pay phones were to be installed, installed the pay
phones, paid the insurance premiums on the pay phones, collected
and accounted for the revenues generated by the pay phones, paid
vendor commissions and fees, obtained all licenses needed to
operate the pay phones, and took all actions necessary to keep
the pay phones in working order. Petitioner signed the Alpha
Telcom service agreement on June 7, 2001, the same day that he
signed the ATC pay phone agreement.
In a letter dated June 11, 2001, petitioner received
confirmation of his pay phone order and notice that an order had
been placed for the installation of the pay phones. Petitioner
had no say as to which pay phones were assigned to him, and he
was not informed as to the location of these pay phones.
Thell G. Prueitt (Prueitt), an agent and sales
representative for ATC, informed petitioner that the income from
the pay phones was taxable but that the pay phones were
depreciable property and, thus, petitioner could claim a
depreciation deduction with respect to the pay phones.
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Petitioner claimed a $714 depreciation deduction with respect to
the pay phones on the Schedule C, Profit or Loss From Business,
that was attached to his income tax return for 2001. Petitioner
reported no other items of income or expense on this Schedule C.
Prueitt also informed petitioner that all of the amounts
that petitioner spent in connection with the pay phones qualified
for the tax credit granted under section 44 for compliance with
the Americans with Disabilities Act of 1990 (ADA), Pub. L. 101-
336, 104 Stat. 327. Additionally, petitioner received a copy of
a letter dated March 4, 1999, in which George Mariscal, president
of Tax Audit Protection, Inc., informed Paul Rubera (Rubera),
president of Alpha Telcom, that “Persons or companies that own
pay telephones that have been modified for use by the disabled
individual are eligible for the tax credit as per the Internal
Revenue Code section outlined in this letter [i.e., section 44]”.
Petitioner also received a copy of a letter dated June 7, 1999,
in which Fred H. Williams of Perkins & Co., P.C., opined to
Rubera that “The purchase of these payphones is an expenditure
which qualifies for the Disabled Access Credit”.
A salesperson for Alpha Telcom informed petitioner that the
pay phones were modified by (1) lengthening the cords and/or
reducing the height to make the pay phones accessible to the
wheelchair bound and/or (2) installing volume controls to make
them more useful to the hearing impaired. Alpha Telcom
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represented to investors that these modifications made the pay
phones compliant with the ADA. The ATC pay phone agreement also
stated: “Phones have approved installation under the
* * * [ADA]”. Petitioner was not provided with a list of the
modifications that were made to the pay phones that were assigned
to him, and he did not know the cost of these modifications.
Petitioner claimed a $1,894 tax credit with respect to the pay
phones on Form 8826, Disabled Access Credit, that was attached to
his income tax return for 2001. For purposes of claiming this
credit, petitioner reported that he had $10,000 of “eligible
access expenditures” during 2001.
Alpha Telcom grew rapidly but was poorly managed and
ultimately operated at a loss. On August 24, 2001, Alpha Telcom
filed for bankruptcy under chapter 11 of the Bankruptcy Code in
the U.S. Bankruptcy Court for the Southern District of Florida.
The case was later transferred to the U.S. Bankruptcy Court for
the District of Oregon on September 17, 2001. On March 15, 2002,
petitioner filed a proof of claim in the bankruptcy court in the
amount of $11,166.80, representing the $10,000 that he had
invested plus approximately 9 or 10 months of payments that he
had not received from ATC as of the claim date. The bankruptcy
case was dismissed on September 10, 2003, by motion of Alpha
Telcom. The bankruptcy court held that it was “in the best
interest of creditors and the estate to dismiss so that
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proceedings could continue in federal district court, where there
was a pending receivership involving debtors.”
The receivership was the result of a civil enforcement
action brought by the Securities and Exchange Commission (SEC)
against Alpha Telcom in 2001 in the U.S. District Court for the
District of Oregon. The District Court appointed a receiver in
September 2001 to take over the operations of Alpha Telcom and to
investigate its financial condition. On February 7, 2002, the
District Court held that the pay phone scheme was actually a
security investment and that Federal law had been violated by
Alpha Telcom because the program had not been registered with the
SEC. The U.S. Court of Appeals for the Ninth Circuit affirmed
this decision on December 5, 2003.
Petitioner’s Unreported Income
During 2001, petitioner received proceeds of $146,912.28
from the sale of stocks from his USB PaineWebber brokerage
account. Petitioner also received dividends of $5,982.05 during
2001. Petitioner did not report the stock sales or dividends on
his income tax return for 2001. Respondent has conceded that the
stock sales did not result in taxable gains.
Internal Revenue Service Determinations
The Internal Revenue Service (IRS) disallowed the
depreciation deduction claimed by petitioner because “the
telephone is located in a place that * * * [petitioner did] not
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own or operate as a trade or business and * * * [petitioner] did
not have depreciable interest in the pay phone”. The IRS also
disallowed the disabled access credit claimed by petitioner
because “no business reason has been given or verified to comply
with ADA of 1990”.
Procedural Matters
The petition in this case was prepared by the office of Tom
Buck, C.P.A. (Buck), and was filed with the Court on July 26,
2004. Buck’s letterhead asserts: “Understanding how to play the
game is half the battle.” On September 8, 2004, Buck sent a
letter to petitioner that stated that “my purpose was to work
within the IRS system to buy you as much time as possible, before
the IRS has a legal right to enforce collection action against
you.” By notice served October 5, 2004, this case was set for
trial on March 7, 2005. Petitioner failed and refused to appear
for trial and attempted to withdraw his petition through a letter
received by the Court on the day of trial.
Discussion
Burden of Proof
As a preliminary matter, we note that section 7491 is
applicable to this case because the examination in connection
with this action was commenced after July 22, 1998, the effective
date of that section. See Internal Revenue Service Restructuring
and Reform Act of 1998, Pub. L. 105-206, sec. 3001(c)(1), 112
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Stat. 727. Under section 7491, the burden of proof shifts from
the taxpayer to the Commissioner if the taxpayer produces
credible evidence with respect to any factual issue relevant to
ascertaining the taxpayer’s tax liability. Sec. 7491(a)(1).
However, section 7491(a)(1) applies with respect to an issue only
if the taxpayer has complied with the requirements under the Code
to substantiate any item, has maintained all records required
under the Code, and has cooperated with reasonable requests by
the Commissioner for witnesses, information, documents, meetings,
and interviews. See sec. 7491(a)(2)(A) and (B).
Petitioner failed to appear at trial or to produce any
credible evidence. Petitioner has no records or information as
to where the pay phones are located or as to the amount of
revenue that they produced. Therefore, the burden of proof has
not shifted to respondent. Nonetheless, our findings in this
case are based on a preponderance of the evidence.
Depreciation Deduction
Section 167(a) allows as a depreciation deduction a
reasonable allowance for the “exhaustion, wear and tear” of
property (1) used in a trade or business or (2) held for the
production of income. Sec. 167(a)(1) and (2). Depreciation
deductions are based on an investment in and actual ownership of
property rather than the possession of bare legal title. See
Grant Creek Water Works, Ltd. v. Commissioner, 91 T.C. 322, 326
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(1988); see also Narver v. Commissioner, 75 T.C. 53, 98 (1980),
affd. 670 F.2d 855 (9th Cir. 1982). “In a number of cases, the
Court has refused to permit the transfer of formal legal title to
shift the incidence of taxation attributable to ownership of
property where the transferor continues to retain significant
control over the property transferred.” Frank Lyon Co. v. United
States, 435 U.S. 561, 572-573 (1978). “‘[T]axation is not so
much concerned with the refinements of title as it is with actual
command over the property taxed’”. Grodt & McKay Realty, Inc. v.
Commissioner, 77 T.C. 1221, 1236 (1981) (quoting Corliss v.
Bowers, 281 U.S. 376, 378 (1930)); see also United States v. W.H.
Cocke, 399 F.2d 433, 445 (5th Cir. 1968). Therefore, when a
taxpayer never actually owns the property in question, the
taxpayer is not allowed to claim deductions for depreciation.
See Grodt & McKay Realty, Inc. v. Commissioner, supra at 1236-
1238; see also Schwartz v. Commissioner, T.C. Memo. 1994-320,
affd. without published opinion 80 F.3d 558 (D.C. Cir. 1996).
A taxpayer has received an interest in property that
entitles the taxpayer to depreciation deductions only if the
benefits and burdens of ownership with respect to the property
have passed to the taxpayer. See Grodt & McKay Realty, Inc. v.
Commissioner, supra at 1237-1238; see also Grant Creek Water
Works, Ltd. v. Commissioner, supra at 326. Whether the benefits
and burdens of ownership with respect to property have passed to
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the taxpayer is a question of fact that must be ascertained from
the intention of the parties as established by the written
agreements read in light of the attending facts and
circumstances. Grodt & McKay Realty, Inc. v. Commissioner, supra
at 1237. Thus, the Court will look to the substance of the
agreement between the taxpayer and the seller and not just to the
labels used in those agreements. Sprint Corp. v. Commissioner,
108 T.C. 384, 397 (1997); cf. Gregory v. Helvering, 293 U.S. 465,
468-470 (1935). Some of the factors that have been considered by
courts include: (1) Whether legal title passes; (2) how the
parties treat the transaction; (3) whether an equity was acquired
in the property; (4) whether the contract creates a present
obligation on the seller to execute and deliver a deed and a
present obligation on the purchaser to make payments; (5) whether
the right of possession is vested in the purchaser; (6) which
party pays the property taxes; (7) which party bears the risk of
loss or damage to the property; and (8) which party receives the
profits from the operation and sale of the property. Grodt &
McKay Realty, Inc. v. Commissioner, supra at 1237-1238.
Petitioner contends that he “purchased” the pay phones from
ATC and, therefore, held the benefits and burdens of ownership
with respect to the pay phones. After considering the relevant
factors and weighing the facts and circumstances surrounding the
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transactions among petitioner, ATC, and Alpha Telcom, we reject
petitioner’s contention for the reasons discussed below.
First, petitioner had no control over the pay phones, never
had possession of the pay phones, and does not know what the pay
phones look like or where they are located. Petitioner signed an
agreement containing blank spaces where the pay phones were to be
identified.
Second, petitioner never had the power to select the
location of the pay phones or enter into site agreements with the
owners or leaseholders of the premises where the pay phones were
to be located; that power was held by Alpha Telcom through the
Alpha Telcom service agreement.
Third, no evidence indicates that petitioner paid any
property taxes, insurance premiums, or license fees with respect
to the pay phones.
Fourth, there was minimal risk of loss for petitioner
because the ATC pay phone agreement, in combination with the
Alpha Telcom service agreement, allowed petitioner to sell legal
title to the pay phones back to ATC for 10 percent less than the
amount that he invested in them in the first 36 months and for
the full amount that he invested in them after 36 months.
Fifth, under the terms of the Alpha Telcom service
agreement, Alpha Telcom was entitled to receive most of the
profits from the pay phones.
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Sixth, at the time that Alpha Telcom declared bankruptcy,
petitioner filed a claim in bankruptcy court for the “price” of
the pay phones and the monthly payments that he had not received
from ATC, rather than taking possession of the pay phones or
hiring an alternative service provider to maintain the pay
phones. This action supports the conclusion that petitioner was
not the actual owner of the pay phones.
Seventh, although petitioner received legal title to the pay
phones under the terms of the ATC pay phone agreement, the Alpha
Telcom service agreement passed all of the responsibilities for
maintaining the pay phones and the risks associated with the pay
phones’ producing insufficient revenues to Alpha Telcom.
Therefore, when the ATC pay phone agreement and the Alpha Telcom
service agreement are construed together, it becomes clear that
petitioner received nothing more than bare legal title with
respect to the pay phones.
Eighth, the transaction into which petitioner entered with
ATC was more akin to a security investment than a sale. In
essence, petitioner made a one-time payment of $10,000 to ATC for
the opportunity to receive (1) a minimum annual return of
14 percent on that investment, i.e., a minimum monthly payment of
$58.34 per pay phone, and (2) the tax benefits that he believed
would result from his nominal “ownership” of the pay phones.
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Therefore, based upon our analysis of the facts and
circumstances surrounding the transactions among petitioner, ATC,
and Alpha Telcom, we conclude that petitioner did not receive the
benefits and burdens of ownership with respect to the pay phones.
Because petitioner never received a depreciable interest in the
pay phones, he is not entitled to claim a depreciation deduction
under section 167 with respect to them.
ADA Tax Credit
For purposes of the general business credit under section
38, section 44(a) provides a disabled access credit for certain
small businesses. The amount of this credit is equal to
50 percent of the “eligible access expenditures” of an “eligible
small business” that exceed $250 but that do not exceed $10,250
for the year. Sec. 44(a). Therefore, in order to claim the
disabled access credit, a taxpayer must demonstrate that (1) the
taxpayer is an “eligible small business” for the year in which
the credit is claimed and (2) the taxpayer has made “eligible
access expenditures” during that year. If the taxpayer cannot
fulfill both of these requirements, the taxpayer is not eligible
to claim the credit for that year.
For purposes of section 44, the term “eligible small
business” is defined as any person that (1) had gross receipts of
no more than $1 million for the preceding year or not more than
30 full-time employees during the preceding year and (2) elects
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the application of section 44 for the year. Sec. 44(b). The
term “eligible access expenditure” is defined as an amount paid
or incurred by an eligible small business for the purpose of
enabling the eligible small business to comply with the
applicable requirements under the ADA. Sec. 44(c)(1). Such
expenditures include amounts paid or incurred (1) for the purpose
of removing architectural, communication, physical, or
transportation barriers that prevent a business from being
accessible to, or usable by, individuals with disabilities;
(2) to provide qualified interpreters or other effective methods
of making aurally delivered materials available to individuals
with hearing impairments; (3) to acquire or modify equipment or
devices for individuals with disabilities; or (4) to provide
other similar services, modifications, materials, or equipment.
See sec. 44(c)(2). However, eligible access expenditures do not
include expenditures that are unnecessary to accomplish such
purposes. See sec. 44(c)(3). Additionally, eligible access
expenditures do not include amounts that are paid or incurred for
the purpose of removing architectural, communication, physical,
or transportation barriers that prevent a business from being
accessible to, or usable by, individuals with disabilities with
respect to any facility first placed in service after November 5,
1990. See sec. 44(c)(4).
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Petitioner contends that he is eligible to claim the
disabled access credit under section 44(a) because (1) his pay
phone “business” was an eligible small business during 2001 and
(2) his $10,000 investment in the pay phones was an eligible
access expenditure. In the notice of deficiency that respondent
sent to petitioner, respondent disallowed petitioner’s claim for
the disabled access credit because no “business reason” had been
given for petitioner to comply with the ADA. In respondent’s
trial memorandum, respondent contends that petitioner’s $10,000
investment in the pay phones is not an eligible access
expenditure because it “is not at all clear that Petitioner was
required to be compliant with the ADA”. In addition, respondent
contends that petitioner’s pay phone activities do not qualify as
an eligible small business because petitioner “was not in a
business”. Because we conclude that petitioner’s $10,000
investment in the pay phones does not constitute an eligible
access expenditure, it is unnecessary for us to consider whether
petitioner’s pay phone activities constituted an eligible small
business during 2001.
In order for an expenditure to qualify as an eligible access
expenditure within the meaning given that term by section 44(c),
it must have been made to enable an eligible small business to
comply with the applicable requirements under the ADA. See
Fan v. Commissioner, 117 T.C. 32, 38-39 (2001). Consequently, a
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person who does not have an obligation to become compliant with
the requirements set forth in the ADA could never make an
eligible access expenditure. As relevant here, the requirements
set forth in the ADA apply to (1) persons who own, lease, lease
to, or operate certain “public accommodations” and (2) “common
carriers” of telephone voice transmission services. See 42
U.S.C. sec. 12182(a) (2000); see also 47 U.S.C. sec. 225(c)
(2000). As discussed below, petitioner neither owned, leased,
leased to, or operated a public accommodation during 2001, nor
was he a “common carrier” of telephone voice transmission
services during 2001. Accordingly, petitioner was under no
obligation to become compliant with the requirements set forth in
the ADA during that year.
The general rule of ADA title III is that no individual
shall be discriminated against on the basis of disability in the
full and equal enjoyment of goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases, leases to, or
operates a place of public accommodation. 42 U.S.C. sec.
12182(a). Thus, the ADA requires persons who own, lease, lease
to, or operate places of public accommodation to make reasonable
modifications in policies, practices, or procedures when such
modifications are necessary to afford such goods, services,
facilities, privileges, advantages, or accommodations to
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individuals with disabilities, unless the entity can demonstrate
that making such modifications would fundamentally alter the
nature of such goods, services, facilities, privileges,
advantages, or accommodations. 42 U.S.C. sec.
12182(b)(2)(A)(ii). Additionally, the ADA requires persons who
own, lease, lease to, or operate places of public accommodation
to take such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services,
segregated, or otherwise treated differently from other
individuals because of the absence of auxiliary aids and
services, unless the entity can demonstrate that making such
modifications would fundamentally alter the nature of such goods,
services, facilities, privileges, advantages, or accommodations.
42 U.S.C. sec. 12182(b)(2)(A)(iii).
To summarize, any person who owns, leases, leases to, or
operates a public accommodation is required to make modifications
for disabled individuals in order to comply with the requirements
set forth in ADA title III. While ADA title III does not define
the terms “own”, “lease”, “lease to”, or “operate”, we must
construe those terms in accord with their ordinary and natural
meaning. See, e.g., Smith v. United States, 508 U.S. 223, 228
(1993); Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 (5th
Cir. 1995) (construing the term “operate”, as used in ADA title
III, as follows: “To ‘operate,’ in the context of a business
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operation, means ‘to put or keep in operation,’ ‘to control or
direct the functioning of,’ ‘to conduct the affairs of; manage,’”
(citations omitted)). For the reasons discussed above, we
concluded that petitioner did not own the pay phones in which he
invested and had no involvement in their operation. Thus,
petitioner did not own, lease, lease to, or operate anything as a
result of his investment in the pay phones and was never under
any obligation to comply with the requirements of ADA title III
during 2001. We reach this conclusion without deciding whether
pay phones constitute public accommodations within the meaning
given that term by the ADA.
ADA title IV requires common carriers providing telephone
voice transmission services to provide “telecommunications relay
services” throughout the area in which they offer service. 47
U.S.C. sec. 225(c). Telecommunications relay services are
defined as telephone transmission services that provide the
ability for an individual who has a hearing impairment or speech
impairment to engage in communication by wire or radio with a
hearing individual in a manner that is functionally equivalent to
the ability of an individual who does not have a hearing
impairment or speech impairment to communicate using voice
communication services by wire or radio. 47 U.S.C. sec.
225(a)(3). For purposes of ADA title IV, a common carrier is any
person engaged as a common carrier for hire, in intrastate or
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interstate communication by wire or radio. See 47 U.S.C. sec.
225(a)(1); see also 47 U.S.C. sec. 153(10).
It has long been held that “‘a common carrier is such by
virtue of his occupation,’ that is by the actual activities he
carries on”. Natl. Association of Regulatory Util. Commrs. v.
FCC, 533 F.2d 601, 608 (D.C. Cir. 1976) (quoting Washington ex
rel. Stimson Lumber Co. v. Kuykendall, 275 U.S. 207, 211-212
(1927)); see also United States v. California, 297 U.S. 175, 181
(1936). Furthermore, under common law principles, the “primary
sine qua non of common carrier status is a quasi-public
character, which arises out of the undertaking ‘to carry for all
people indifferently’”. Natl. Association of Regulatory Util.
Commrs. v. FCC, supra at 608 (quoting Semon v. Royal Indem. Co.,
279 F.2d 737, 739 (5th Cir. 1960)). Accordingly, a person is not
a common carrier unless the person is actively engaged in the
provision of services to others. Because petitioner did not own
the pay phones in which he invested and had no involvement in
their operation, petitioner was not actively engaged in the
provision of services to anyone as a result of his investment in
the pay phones. Therefore, petitioner was under no obligation to
comply with the requirements set forth in ADA title IV during
2001.
Because petitioner’s pay phone activities did not obligate
him to comply with the requirements set forth in either ADA
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title III or title IV, his $10,000 investment in the pay phones
is not an eligible access expenditure. Therefore, petitioner is
not entitled to claim the disabled access credit under section 44
for his investment in the pay phones in 2001.
Section 6673
Whenever it appears to the Court that proceedings before it
have been instituted or maintained primarily for delay, the
Court, in its decision, may require the taxpayer to pay to the
United States a penalty not in excess of $25,000. Sec.
6673(a)(1)(A). In this case, petitioner was advised that the
purpose of filing the petition was to delay the collection
process. Petitioner engaged in the required stipulation process
but did not appear for trial. We have decided not to impose a
section 6673 penalty in this case, but taxpayers are warned that
sanctions may be appropriate if the Court concludes that a
petition was filed with no intention to prosecute the case and
merely to delay the collection process.
To reflect the foregoing and the concessions of the parties,
Decision will be entered
under Rule 155.