                  T.C. Summary Opinion 2001-125



                     UNITED STATES TAX COURT



                WILLIAM A. RICKER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14677-99S.                  Filed August 16, 2001.


     William A. Ricker, pro se.

     James F. Prothro, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.1   The decision to

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

should not be cited as authority.


     1
       Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for 1995,
the taxable year in issue.
                                 - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax for the taxable year 1995 in the amount of $2,594.

The sole issue for decision is whether petitioner is entitled to

a disabled access credit pursuant to section 44.     We hold that he

is not.

Background

     Some of the facts have been stipulated, and they are so

found.     Petitioner resided in Burleson, Texas, at the time that

his petition was filed with the Court.

     A.    Petitioner’s Dental Practice

     Petitioner is a general practitioner of dentistry.     After

graduating from Baylor Dental School in 1984, petitioner

practiced dentistry in association with other dentists until

1994.     Since 1994, petitioner has practiced as a self-employed

dentist in Burleson, Texas, a bedroom community of Fort Worth.

     During 1995, the taxable year in issue, petitioner employed

three individuals in connection with his dental practice, which

generated approximately $260,000 in gross receipts.     During 1994,

the preceding taxable year, petitioner employed the same number

of individuals, and his practice generated approximately the same

amount of gross receipts.

     As a general practitioner of dentistry, petitioner provides

an array of dental services, including orthodontic care,

extractions, fillings, crowns, endodontics, and root canals.     In
                               - 3 -

connection with his practice, petitioner uses x-ray equipment to

diagnose and treat his patients.   Prior to 1995, petitioner used

a Siemans x-ray machine that produced periapical-view x-rays.

     The Siemans x-ray machine involves a moveable “cone” that is

mounted on a mechanical arm and that is positioned to the side of

a patient’s cheek.   The periapical x-rays are “little bitty films

that fit inside the patient’s mouth”, which may cause a “gag

reflex” in some patients.   The x-rays that are produced may give

rise to a “full-mouth series” of 18 radiographs that provide a

clear view of the bone structure and health of a patient’s teeth.

However, the cost of the Siemans x-rays, and particularly a full-

mouth series, is relatively expensive.    Concerned with the

limited scope of the Siemans x-rays and the discomfort to the

patient, petitioner sought to expand and improve the quality of

the dental x-rays produced, and at a lesser cost.

     B.   The Panoramic X-Ray Machine

     In January 1995, petitioner purchased and placed in service

in his dental practice a previously-owned “J. Morita Versaview

Panoramic X-Ray” machine (the panoramic x-ray machine) for

$5,000.   The panoramic x-ray machine is designed to radiograph a

panoramic view of a patient’s teeth.    The patient remains

stationary while the mechanism orbits around the patient’s head

emitting x-rays as it moves.   When the mechanism finishes its

orbiting cycle, the result produced is a 5- by 12-inch
                                - 4 -

radiographic picture.    The panoramic x-ray is used primarily as a

preliminary diagnostic technique, focusing attention on areas

that may pose increased concern.    The cost of the radiograph that

the machine produces is cheaper than a “full-mouth” series

produced by a standard dental x-ray machine.

     At the time that he acquired the panoramic x-ray machine,

petitioner had the option of purchasing, as an accessory at an

additional cost, a patient chair that could be affixed to the

base of the machine.    Petitioner opted against purchasing the

patient chair.   Without the chair, patients customarily stand

while holding handles to maintain stillness and “bite on a little

piece to position their head”, whereas patients who are confined

to a wheelchair are instructed to do the same while remaining

seated in their wheelchair, which is rolled directly under the

machine over a flat base.    Thus, by opting not to purchase the

accessory chair, petitioner reduced the acquisition cost of the

panoramic x-ray machine and avoided the risk inherent in

transferring a disabled patient from chair to chair, but without

compromising the diagnostic value of the x-ray machine to able-

bodied patients.

     Petitioner uses the panoramic x-ray machine on a daily basis

and for all of his patients without regard to whether an

individual is disabled or able-bodied.    Indeed, the machine is

intended to improve the standard of care for all patients and was
                                - 5 -

not specifically designed to facilitate the treatment of disabled

individuals.

     C.   The Wehmer X-Ray Machine

     In December 1995, petitioner purchased and placed in service

in his dental practice a “Wehmer Counterbalanced Cephalometer

System X-Ray” machine (the Wehmer x-ray machine) for $2,725.     The

Wehmer x-ray machine produces a radiograph of the patient’s

entire head, focusing on the jaw and its structure and alignment

and the teeth and their position and alignment.    The machine

operates at a distance of approximately 5 feet from the patient’s

head and rotates to produce either lateral, oblique, or frontal

views.    The result is a 9- by 10-inch radiographic picture.

     According to the manufacturer’s brochure, the Wehmer x-ray

machine produces a “cephalogram” that

     enables the practitioner to accurately measure the
     angular relationships between various facial components
     and the head. It is used to help identify facial
     abnormalities in relation to dentition; to project the
     growth and development patterns of facial components;
     and to plan and monitor treatment by superimposing
     successive cephalograms and measuring the changes due
     to growth and orthodontic treatment.

     In addition to its ability to detect skeletal deformities

and deficiencies in bone growth, the Wehmer x-ray machine is

“essential for diagnosis and treatment” and is used by “general

dentists” who plan to expand their practice into orthodontics and

cosmetic dentistry.    The machine is considered the standard of

care for orthodontic treatment.
                               - 6 -

     Like the panoramic x-ray machine, the Wehmer x-ray machine

is vertically adjustable.   Thus, like the panoramic x-ray

machine, patients customarily stand while the Wehmer x-ray

machine is in use, whereas patients who are confined to a

wheelchair may remain seated in their wheelchair.

     Again, like the panoramic x-ray machine, the Wehmer x-ray

machine may be purchased with an accessory chair at an additional

cost.   Petitioner chose not to purchase the accessory chair,

thereby reducing the acquisition cost of the machine and avoiding

the risk inherent in transferring a disabled patient from chair

to chair, but without compromising the diagnostic value of the

machine to able-bodied patients.   As with the panoramic x-ray

machine, a patient who is confined to a wheelchair can easily

access the open space beneath the Wehmer x-ray machine.

     Along with the Wehmer x-ray machine, petitioner purchased a

“Wehmer Rare Earth Cassette with Screens” (rare earth cassette)

for $299.   The rare earth cassette is an “amplifying screen” that

serves to reduce the amount of radiation emitted from the Wehmer

x-ray machine.

     Petitioner uses the Wehmer x-ray machine and rare earth

cassette on a daily basis and for all of his patients without

regard to whether an individual is disabled or able-bodied.

Indeed, the machine and cassette are intended to improve the

standard of care for all patients, and neither was specifically
                               - 7 -

designed to facilitate the treatment of disabled individuals.

     D.   Petitioner’s Patient Population

     In 1995, petitioner’s patient population consisted of about

2,000 individuals, representing a broad spectrum of the local

community.   Of those individuals, fewer than 5 percent were

confined to a wheelchair.

     Prior to petitioner’s purchase of the panoramic x-ray

machine and the Wehmer x-ray machine, none of petitioner’s

disabled patients complained about the x-ray machines then in use

in petitioner’s office.   Petitioner did not purchase either x-ray

machine at the suggestion or recommendation of any of his

disabled patients, nor did petitioner consult with any of his

disabled patients regarding the purchase of either machine.

     Prior to his purchase of the panoramic and Wehmer x-ray

machines, petitioner did not refuse treatment to a prospective

patient because the patient was confined to a wheelchair.    At the

time that he purchased those machines, petitioner was in

compliance with applicable requirements of the Americans With

Disabilities Act of 1990 (ADA), 42 U.S.C. secs. 12101-12213

(1995).

     Petitioner purchased both the panoramic and Wehmer x-ray

machines in order to provide better care to all of his patients,

without regard to whether any particular individual was disabled

or able-bodied.
                                - 8 -

     E.    Petitioner’s 1995 Income Tax Return

     Petitioner filed a Federal income tax return for 1995 and

claimed thereon a disabled access credit in the amount of $3,887.

In support of the credit, petitioner attached to his return Form

8826, Disabled Access Credit, on which he computed the credit as

follows:

       Total eligible access expenditures
            Panoramic x-ray machine   $5,000
            Wehmer x-ray machine       2,725
            Rare earth cassette           299      $8,024
       less: Minimum amount                          -250
       Balance                                      7,774
       Applicable percentage                          50%
       Disabled access credit                       3,887


     F.    Respondent’s Notice of Deficiency

     In the notice of deficiency, respondent disallowed the

disabled access credit for 1995 on the ground that the panoramic

x-ray machine, the Wehmer x-ray machine, and the rare earth

cassette do not constitute eligible access expenditures within

the meaning of section 44.    Rather, respondent treated the cost

of acquiring the x-ray machines and cassette “as a depreciation

expense under Section 179”.

     G.    Petitioner’s Contentions

     Petitioner candidly admits that his purchase of the

panoramic and Wehmer x-ray machines was not motivated by any

requirement of the ADA and that both machines are “usable to

provide services to patients without disabilities as well as
                               - 9 -

patients with disabilities”.   Nevertheless, petitioner contends

that he is entitled to a disabled access credit under section 44

because “the design of these machines allows me to provide the

same quality and breadth of services to my disabled patients as I

provide to my other patients”, or, in other words, because “The

machines that I purchased prevent discrimination against disabled

persons.”

Discussion

     Subject to various limitations, an “eligible small business”

is entitled to a disabled access credit for “eligible access

expenditures” for the taxable year.    Sec. 44(a).2   In the present

case, there is no question that petitioner qualifies as an

“eligible small business” for the year in issue.      Sec. 44(b).3

However, the parties disagree on whether the cost of the



     2
         Sec. 44(a) provides as follows:

     SEC. 44. EXPENDITURES TO PROVIDE ACCESS TO DISABLED
     INDIVIDUALS.
          (a) General Rule.–-For purposes of section 38
     [General Business Credit], in the case of an eligible
     small business, the amount of the disabled access
     credit determined under this section for any taxable
     year shall be an amount equal to 50 percent of so much
     of the eligible access expenditures for the taxable
     year as exceed $250 but do not exceed $10,250.
     3
        As relevant herein, sec. 44(b) defines “eligible small
business” to mean any person (1) whose gross receipts for the
preceding taxable year did not exceed $1,000,000 or who did not
employ more than 30 full time employees during the preceding
taxable year and (2) who elects the application of the section
for the taxable year.
                                - 10 -

panoramic and Wehmer x-ray machines and rare earth cassette

constitutes “eligible access expenditures” within the meaning of

section 44(c).

     In order to qualify as “eligible access expenditures”,

amounts must be “paid or incurred by an eligible small business

for the purpose of enabling such eligible small business to

comply with applicable requirements under the Americans With

Disabilities Act of 1990 (as in effect on the date of the

enactment of this section).”    Sec. 44(c)(1).

     Section 44 was enacted on November 5, 1990, as part of the

Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, sec.

11611(a), 104 Stat. 1388, 1388-501.      Section 44 is intended to

complement the ADA by providing “relief to small businesses

making accommodations required by the ADA.”      136 Cong. Rec.

S12852 (daily ed. Sept. 12, 1990) (Statement by Senator Kohl).

The legislative history indicates that Congress was concerned

that the requirements contained in the ADA may impose a severe

financial burden on certain small businesses.      See H. Conf. Rept.

101-964, at 1138-1140 (1990).    In order to alleviate the burden,

Congress provided small businesses with a tax credit for a

portion of the costs incurred in complying with the ADA.      See id.

If the expenditure was not made to enable compliance with the

ADA, then the expenditure does not qualify for the credit under
                              - 11 -

section 44.   Fan v. Commissioner, 117 T.C.       ,      (2001)

(slip op. at 11).

     Congress enacted the ADA to establish a clear and

comprehensive Federal prohibition of the discrimination on the

basis of disability in a number of areas, specifically including

public accommodations.   H. Rept. 101-485 (Vol. II), at 28 (1990);

see also 42 U.S.C. sec. 12101(b) (1994).     Petitioner’s dental

practice is a place of public accommodation within the meaning of

the ADA.   See Fan v. Commissioner, supra (slip op. at 7).    We

therefore focus our attention on Title III of the ADA dealing

with public accommodations.   42 U.S.C. secs. 12181-12189.

     Title III of the ADA prohibits discrimination “on the basis

of disability in the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommodations

of any place of public accommodation by any person who owns,

leases (or leases to), or operates a place of public

accommodation.”   42 U.S.C. sec. 12182(a).    Title III specifically

defines discrimination to include a failure to take necessary

steps to ensure that no individual with a disability is denied

services because of the absence of auxiliary aids and services.

42 U.S.C. sec. 12182(b)(2)(A)(iii).    As relevant herein, the term

“auxiliary aids and services” includes the “acquisition or

modification of equipment or devices; and other similar services

and actions.”   42 U.S.C. sec. 12102(1)(C) and (D).
                               - 12 -

     The ADA does not elaborate further with respect to the

aforementioned categories of auxiliary aids and services.

Rather, the final regulations implementing the ADA provide only

examples of auxiliary aids and services in the areas of hearing

and visual impairments.   See 28 C.F.R. sec. 36.303(b) (2000); see

also Fan v. Commissioner, supra.    Absent in these regulations is

any mention of x-ray machines, much less dental x-ray machines.

     Petitioner contends that his purchase of the panoramic and

Wehmer x-ray machines and rare earth cassette enabled his dental

services business to comply with applicable requirements of the

ADA and that the cost of the x-ray machines and cassette

therefore qualifies as “eligible access expenditures”.   We

disagree.

     Initially, we note that petitioner was already in compliance

with the ADA at the time that he purchased the panoramic and

Wehmer x-ray machines.    Petitioner did not discriminate against,

or refuse to treat, disabled patients “on the basis of

disability”.   42 U.S.C. sec. 12182(a).   Nor did petitioner fail

to take necessary steps to ensure that no individual with a

disability was denied services because of the absence of

auxiliary aids and services.   See 42 U.S.C. sec.

12182(b)(2)(A)(iii).

     Prior to petitioner’s purchase of the panoramic and Wehmer

x-ray machines, none of petitioner’s disabled patients had ever
                                - 13 -

complained about the type of x-ray equipment then in use in

petitioner’s dental practice.    Moreover, prior to purchasing

those x-ray machines, petitioner had never consulted with any of

his disabled patients regarding his intention to acquire the

machines.

     Essentially, petitioner was under no compulsion to purchase

the panoramic and Wehmer x-ray machines.     Petitioner candidly

admits that he did not purchase either machine in order to comply

with any requirement of the ADA.    Rather, petitioner purchased

the machines in order to provide all of his patients with better

dental care.

     Petitioner did not make any modification to either the

panoramic or Wehmer x-ray machine for the purpose of treating any

of his disabled patients.   Petitioner specifically declined to

purchase the x-ray machines with an installed patient chair.

Petitioner regards this decision as evidence of his desire to

better serve his disabled patients.      In petitioner’s view, the x-

ray machines that he purchased “allow the ability to place

handicap patients in it * * * You can simply roll the wheelchair

into the machine.”   However, petitioner also admits that his

“machines serve everyone” and “afford me an ability to more

readily get radiographs on [the patients].”

     The panoramic and Wehmer x-ray machines are standard

machines used in the field of dentistry and are likely to be
                              - 14 -

found in most modern dental offices.   Neither x-ray machine was

designed or marketed to facilitate accessibility to disabled

patients.   Rather, each machine has general applicability and

usefulness to all dental patients.

     Thus, nothing in the record suggests that the panoramic and

Wehmer x-ray machines qualify as auxiliary aids or services.     42

U.S.C. sec. 12182(b)(2)(A)(iii); Fan v. Commissioner, supra.

Therefore, the cost of the machines and rare earth cassette is

not an eligible access expenditure within the meaning of section

44(c).   Accordingly, the machines and cassette do not qualify for

the disabled access credit under section 44(a).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     In order to reflect the foregoing,



                                          Decision will be entered

                                     for respondent.
