                   T.C. Summary Opinion 2002-1



                     UNITED STATES TAX COURT



            JAMES & MARILYN WADNIZAK, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6443-00S.             Filed January 14, 2002.



     James Wadnizak, pro se.

     Daniel J. Parent, for respondent.



     DINAN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the year in issue.
                                - 2 -

     Respondent determined a deficiency in petitioners’ Federal

income tax of $4,731 for the taxable year 1995.

     The issue for decision is whether petitioners are entitled

to a disabled access credit under sections 38 and 44.

     Some of the facts have been stipulated and are so found.

The stipulations of fact and the attached exhibits are

incorporated herein by this reference.   Petitioners resided in

Brentwood, California, on the date the petition was filed in this

case.

     Petitioner husband (petitioner) purchased a panoramic x-ray

machine in 1995 for use in his general dentistry practice at a

cost of $16,012.75.   The new x-ray machine replaced and updated

another panoramic x-ray machine which petitioner had purchased in

1969, but which was still fully functional.   The new machine

occupied substantially less space than the old machine, and,

because of limited space in petitioner’s office, the new machine

allowed petitioner to x-ray patients who were in wheelchairs or

who used crutches or walkers.   In addition to the new panoramic

x-ray, petitioner also had two periapical/bitewing x-ray machines

purchased in 1980 and 1982.   Petitioner admitted at trial that,

although he purchased the new panoramic x-ray machine because of

its ability to treat disabled patients, the other two x-ray

machines had been adequate in the past to meet the needs of his
                                 - 3 -

disabled patients without resort to the replaced panoramic x-ray

machine.

     On petitioners’ joint Federal income tax return for taxable

year 1995, petitioners claimed a $4,731 disability access credit

for the x-ray machine under sections 38 and 44.       Petitioners also

claimed a $16,012 deduction for the x-ray machine on the Schedule

C, Profit or Loss From Business, filed for petitioner’s dentistry

practice.   The deduction was claimed pursuant to an election made

by petitioners to expense the full purchase price of the x-ray

machine under section 179(a).1

     In the statutory notice of deficiency, respondent’s sole

adjustment was the disallowance of the disabled access credit.

Respondent did not disallow the section 179(a) expense deduction.

     Subject to various limitations, an eligible small business

is entitled to a disabled access credit for eligible access

expenditures for the taxable year.       Secs. 38, 44.   The amount of

the disabled access credit is determined under section 44 and is

allowed as a general business credit under section 38.       In

general, expenditures made to comply with the Americans With

Disabilities Act of 1990 (ADA), Pub. L. 101-336, 101 Stat. 327,

are eligible access expenditures.    See sec. 44(c)(1); Fan v.

Commissioner, 117 T.C. 32 (2001).    Taxpayers are prohibited from


     1
      Petitioners also filed an amended return for taxable year
1995. The changes made by this return are not relevant to this
case and are reflected in the statutory notice of deficiency.
                               - 4 -

gaining a benefit from the same expenditure both for a disabled

access credit and for another deduction or credit:    “In the case

of any amount of the credit determined under this section * * *

no deduction or credit shall be allowed for such amount under any

other provision of this chapter.”    Sec. 44(d)(7)(A).

     A taxpayer may elect to expense, rather than capitalize,

certain property used in a trade or business.    Sec. 179(a), (c).

The election must be made on the taxpayer’s first income tax

return for the taxable year to which the election applies.    Sec.

179(c)(1)(B); sec. 1.179-5(a), Income Tax Regs.    Once made, the

election is irrevocable and binding upon the taxpayer unless

revoked with the consent of the Commissioner.    Sec. 179(c)(2);

sec. 1.179-5(a) and (b), Income Tax Regs.    Taxpayers are

prohibited from gaining a double benefit from a section 38

credit:   “No credit shall be allowed under section 38 with

respect to any amount for which a deduction is allowed under

subsection (a).”   Sec. 179(d)(9).   The regulations similarly

provide that “If a taxpayer elects to expense under section 179,

no section 38 credit is allowable for the portion of the cost

expensed.”   Sec. 1.179-1(g), Income Tax Regs.

     Section 179 and the regulations thereunder control in this

case.   Petitioners elected to expense the entire purchase price

of the x-ray machine on their 1995 tax return and were allowed a

deduction in the full amount of its cost.    They consequently are
                                 - 5 -

not entitled to a credit under sections 38 and 44 for any portion

of its cost.   Sec. 179(d)(9); King v. Commissioner, T.C. Memo.

1990-548; sec. 1.179-1(g), Income Tax Regs.        At trial,

petitioners conceded that entitlement to the credit would mean

that they are not entitled to the full amount of the deduction.

This concession presupposes the argument that petitioners could

“disclaim” the deduction in favor of the credit even though they

made a section 179(c) election.    This is not the case, however,

because the election is irrevocable and binds petitioners.          Sec.

179(c)(2); King v. Commissioner, supra;2 sec. 1.179-5(a) and (b),

Income Tax Regs.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.




     2
      Although we need not delve into the details of whether
petitioners otherwise would have been entitled to the disabled
access credit, we note that petitioner admitted that he had been
able to adequately treat his disabled patients without access to
a panoramic x-ray machine. See Fan v. Commissioner, 117 T.C. 32,
38-39 (2001) (taxpayers were not entitled to a disability access
credit in part because of already existing compliance with the
ADA).
