Warbelow's Air Ventures, Inc. v. Commissioner

MEMORANDUM *

Petitioner-Appellant Warbelow’s Air Ventures, Inc. (Warbelow’s) appeals from the Tax Court’s decision holding that it was liable for income tax deficiencies for the years 1996-1998. We do not recite the facts of this case here because they are known to the parties.

To qualify for the Indian Employment [Tax] Credit, the employees must (1) be-or be married to-enrolled members of an Indian tribe; (2) perform substantially all employment services “within an Indian reservation;” and (3) reside while performing such services “on or near the reservation in which the services are performed.” See 26 U.S.C. § 45A(c)(1) (2000). The parties do not dispute that Warbelow’s meets the first and third requirements. The only issue on appeal is whether Warbelow’s meets the second requirement: that employees perform substantially all services “within an Indian reservation.”

Warbelow’s argues that § 45A does not require a qualified employee to work “on” an Indian reservation but “within” an Indian reservation, which Warbelow’s defines as any land on or surrounded by an Indian reservation. No case supports Warbelow’s interpretation. Section 45A provides that the applicable definition of…