Florida Progress Corp. v. United States

264 F.3d 1313, 89 A.F.T.R.2d (RIA) 1214, 2001 U.S. App. LEXIS 21620, 2001 WL 1033419

Opinions

OPINION ON PETITION FOR REHEARING

Before BLACK, FAY and COX, Circuit Judges.

PER CURIAM:

This court issued an unpublished opinion in this case affirming the district court’s decision, with a dissent. The appellant Florida Progress Corporation has petitioned for rehearing,’ asking in part that this court publish its opinion in order to provide guidance on the second issue Florida Progress raises — the immediate deduc-tibility of trenching costs. The petition is GRANTED to that extent we vacate our unpublished opinion and substitute the following opinion, for publication. The petition is otherwise DENIED.

Florida Progress Corporation, which the parties refer to as Florida Power, appeals following summary judgment against it in its suit for recovery of taxes paid for the tax years 1982 through 1985. Florida Power presents two issues: first, whether under 26 U.S.C. § 118(b) (which was repealed in 1986), it was entitled to exclude from income certain fees paid by customers to cover the marginal costs of burying electric lines serving the customers’ premises, rather than stringing the lines overhead; and second, whether trenching costs (roughly speaking, the marginal costs of burying the lines rather than running them overhead) were properly expensed under 26 U.S.C. § 162(a) rather than capitalized and depreciated as contemplated by 26 U.S.C. § 263. Having reviewed the authorities the parties cite and considered the parties’ arguments, we agree with the district court’s analysis of these issues and affirm for the reasons stated in its thorough and well-reasoned opinion, which is published at 156 F.Supp.2d 1265 (2001).

AFFIRMED.