We must first determine whether in fact the property in question constitutes "tangible personal property" within the provisions of section 48(a)(1)(A). If the asset does not qualify under that subsection, we must then examine whether the property can be considered "other tangible property" within the provisions of section 48(a)(1)(B)(i) or (iii). In order to determine whether the property in question 88 T.C. 816">*824 qualifies as "tangible personal property" or as "other tangible property," our first inquiry is whether the property or a portion thereof ¹²1987 U.S. Tax Ct. LEXIS 45">*61 constitutes a building. To the extent that any portion of1987 U.S. Tax Ct. LEXIS 45">*60 the asset constitutes a building, it will not qualify for the investment credit. ¹³

The term "building" is given its commonly accepted meaning. Samis v. Commissioner, 76 T.C. 609">76 T.C. 609, 76 T.C. 609">617 (1981); Consolidated Freightways, Inc. v. Commissioner, 74 T.C. 768">74 T.C. 768, 74 T.C. 768">793 (1980), affd. on this point 708 F.2d 1385">708 F.2d 1385, 708 F.2d 1385">1388 (9th Cir. 1983). ¹⁴ The regulations as well as the courts look to both the appearance and the function to determine whether the questioned property constitutes a building. ¹⁵ The courts have generally regarded the function of the asset1987 U.S. Tax Ct. LEXIS 45">*62 as the more important test. Munford, Inc. v. Commissioner, 87 T.C. 463">87 T.C. 463, 87 T.C. 463">479-480 (1986); Satrum v. Commissioner, 62 T.C. 413">62 T.C. 413, 62 T.C. 413">416 (1974).

Considering the appearance of the asset, there is no question but that it looks like a building. It has a concrete base of approximately 10,283 square feet, a roof, exterior and interior walls, doors, and lighting fixtures. Despite our finding that the asset looks like a building, we must go beyond the appearance and determine whether the asset 88 T.C. 816">*825 functions as a building. Since the functions of the compartments differ, we will examine the separate compartments according to their respective functions. 87 T.C. 463">Munford Inc. v. Commissioner, supra.

1987 U.S. Tax Ct. LEXIS 45">*63 1. The Loading Area

The loading area, which is approximately 113 feet by 21 feet has doors up to which trucks back for loading and unloading of commodities. The area is refrigerated to a temperature of approximately 45 degrees. ¹⁶ This loading and unloading of commodities is the basic work that takes place in this area.

One of the criteria in determining whether or not a structure functions as a building is whether it furnishes working space to employees. If working space is provided, then the nature of the relationship between the working space and the activity of the employees must be examined. If the employee activity is merely incidental to ¹⁷ the principal function of the structure, then it would not be considered a building furnishing working space. Consolidated Freightways, Inc. v. Commissioner, 708 F.2d 1385">708 F.2d 1385. We believe that the facts here are similar to those in 74 T.C. 768">Consolidated Freightways, Inc. v. Commissioner, supra. In that case, the1987 U.S. Tax Ct. LEXIS 45">*64 taxpayer, which operated numerous trucking terminals, placed in service a number of trucking terminal facilities, including loading docks, and claimed an investment tax credit with respect to the loading dock facilities. The Court examined the extent of human activity at the loading docks and concluded as follows:

Suffice it to say that the purpose of the dock, to move freight, is accomplished primarily by the efforts of those who work on the dock. The purpose of the dock is for more than "incidentally" to provide working space for the employees of petitioner. Human activities inside the docks were essential to the function of the docks. Both the quantity and quality ("nature") of work performed on the dock is sufficient, in our minds, to qualify them as buildings. [Consolidated Freightways, Inc. v. Commissioner, 74 T.C. 768">74 T.C. 796. Citations omitted.]

We believe that the result here should be the same as in 74 T.C. 768">Consolidated Freightways, Inc. v. Commissioner, supra. The 88 T.C. 816">*826 purpose of the loading area is to provide working space for the loading and unloading of commodities. This movement of commodities must be accomplished by human activity. 1987 U.S. Tax Ct. LEXIS 45">*65 Such human activity is more than "incidental" to the loading area. We thus conclude that the loading area is a building within the meaning of section 48(a)(1) and, thus, not section 38 property. See also 87 T.C. 463">Munford, Inc. v. Commissioner, supra.¹⁸

2. The 55-Degree Compartment

The 55-degree compartment is divided into two parts, a cutting area and a storage area, which are separated by a wire mesh barrier.

a. Cutting area. -- The cutting area is 30.5 feet by 55 feet. Up to eight employees work in this area 8 hours per day cutting, cleaning, inspecting, and packaging chickens. Based on this finding there is no doubt that the cutting area constitutes1987 U.S. Tax Ct. LEXIS 45">*66 a building, the purpose of which is to provide space for employees to perform their work. Certainly the human activity is not "incidental" to the primary function of the area. In fact, the primary function of this area is the very work performed by the employees. Scott Paper Co. v. Commissioner, 74 T.C. 137">74 T.C. 137 (1980); Central Citrus Co. v. Commissioner, 58 T.C. 365">58 T.C. 365 (1972); Catron v. Commissioner, 50 T.C. 306">50 T.C. 306 (1968); Consolidated Freightways, Inc. v. Commissioner, 708 F.2d 1385">708 F.2d 1385. Accordingly this area functions as a building and is not section 38 property.

b. Storage area. -- This storage area is approximately 30.5 feet by 15 feet. Miscellaneous products such as oils and shortenings are stored in this part, and the only work activity is that of stacking and unstacking the items stored there. The issue arises as to whether the storage area should be considered as part of the cutting area since the only separation is a wire mesh barrier. The parties have stipulated that there are five separate refrigerated areas or compartments and this is one of1987 U.S. Tax Ct. LEXIS 45">*67 the five. We thus conclude that the entire 55 degree compartment ought to be considered as a unit. Accordingly, the storage area which is part 88 T.C. 816">*827 of this compartment is a building and, therefore, is not section 38 property. ¹⁹

3. The Remaining Compartments (Zero-Degree, 28-Degree, and 32-Degree)

The parties have stipulated that the only employee work activity that takes place in the zero-degree compartment, the 28-degree compartment, and the 32-degree compartment is the stacking and unstacking of commodities which are stored in these areas. Accordingly, we are satisfied that the principal functions of these compartments are for storage and the human activity is merely incidental to the primary functions. See 1987 U.S. Tax Ct. LEXIS 45">*68 cases cited at notes 14 and 15 supra. Thus, these compartments are not buildings within the meaning of section 1.48-1(e)(1), Income Tax Regs. Nor are the compartments tangible personal property under section 48(a)(1)(A). In 87 T.C. 463">Munford, Inc. v. Commissioner, supra at 492, we held that a refrigerated structure claimed by the taxpayer to be a "large refrigerator" was not tangible personal property. We find Munford to be controlling and, therefore, hold that these three compartments are not tangible personal property.

We must next determine whether any of these remaining compartments qualify for the investment credit as "other tangible property" within the meaning of section 48(a)(1)(B)(i) or (iii). The first test under the regulations ²⁰ is whether the property is used as an integral part of manufacturing, production, or extraction. These terms are further defined in the regulations. ²¹

1987 U.S. Tax Ct. LEXIS 45">*69 88 T.C. 816">*828 Respondent argues that, since the commodities are in prepackaged form and since they are merely stored under refrigeration, there is no "processing of foodstuffs." Petitioner argues that the overall activities and certainly the activities in the 55-degree room constitute the processing of foodstuffs. Thus petitioner concludes that the asset is used as an "integral part" of the specified activity.

As we pointed out in Giannini Packing Corp. v. Commissioner, 83 T.C. 526">83 T.C. 526, 83 T.C. 526">532 (1984), the controlling of atmospheric conditions has been recognized to be a part of the production processes. In Brown-Forman Distillers Corp. v. United States, 205 Ct. Cl. 402">205 Ct. Cl. 402, 499 F.2d 1263">499 F.2d 1263 (1974), the taxpayer engaged in the distilling, aging, bottling, and marketing of bourbon whiskey. The taxpayer built special facilities to hold thousands of barrels of distillate. Temperature and humidity control were essential for the distillate. The Court held that these functions were an "integral part" of the processing of the bourbon whiskey.

In Giannini Packing Corp., the taxpayer, who was in the business of acquiring, storing, 1987 U.S. Tax Ct. LEXIS 45">*70 and marketing fresh fruit, constructed a packing and storage facility. The first two rooms (pre-cooling rooms) were where the fruit was received in bins, cooled, removed from bins, sorted, and packed in cardboard cartons. The fruit was then stored in two other rooms (holding rooms) after it was packed. The rooms were cooled by the convection process. These rooms were specially designed and were essential to the aging and sweetening of the fruit. Respondent attempted to distinguish Central Citrus Co. v. Commissioner, 58 T.C. 365">58 T.C. 365, from Giannini Packing Corp., in that in the former case the fruit was placed in the facility before processing and packaging was completed, whereas in the latter case, the fruit was held in boxes after packaging. In 83 T.C. 526">Giannini Packing Corp., supra88 T.C. 816">*829 at 534, we held that the holding rooms were an "integral part of * * * production."

In this case, there is no dispute that there is a processing activity in the 55-degree room. Since we have already determined that the 55-degree room does not qualify for the investment credit, ²² we look to determine if any other areas of1987 U.S. Tax Ct. LEXIS 45">*71 the asset are used as an integral part of the qualified activity. The parties have stipulated that the poultry commodities (whole chickens and chicken parts which are cut into pieces) are stored in the 32-degree compartment. These items are stored at the lower temperature to prevent spoilage. Accordingly, we find that the 32-degree room is an integral part of the production process since at least a part of the business of petitioner is the cutting, packaging, cooling, and storing of chicken parts. See 83 T.C. 526">Giannini Packing Corp. v. Commissioner, supra at 534; Central Citrus Co. v. Commissioner, 58 T.C. 365">58 T.C. 373.

Our conclusion as to the 32-degree compartment is not inconsistent with L&B Corp. v. Commissioner, 88 T.C. 744">88 T.C. 744 (1987), filed this date. There we held that the cold storage1987 U.S. Tax Ct. LEXIS 45">*72 of meats and other food products is not a "processing of meat" within the meaning of section 1.48-1(d)(2), Income Tax Regs., and therefore not an "integral part of production" for purposes of section 48(a)(1)(B)(i). However, L&B Corp. is factually distinguishable from this case. Here, unlike in L&B Corp., part of petitioner's business involved the cutting, cleaning, inspecting, and packaging of chickens. It is these activities, and the relationship of the 32 degree compartment thereto, which support our conclusion that that compartment constitutes an integral part of the production process.

The two remaining compartments of the asset are the zero-degree room and the 28-degree room. The parties have stipulated that all commodities (other than whole chickens and chicken parts which are processed in the 55-degree room and stored in the 32-degree room) are received in prepackaged form from independent third-party suppliers. Thus, the commodities stored in the zero-degree and 28-degree compartments are not processed in any way by 88 T.C. 816">*830 petitioner. There is no evidence submitted by petitioner which would indicate that the commodities which are received in prepackaged form, 1987 U.S. Tax Ct. LEXIS 45">*73 stored in the zero-degree and 28-degree compartments, and ultimately sold are in any way changed in form. ²³ See 88 T.C. 744">L&B Corp. v. Commissioner, supra.In this regard, petitioner has failed in its burden of proof to establish that the zero-degree and 28-degree rooms are an integral part of the production process.

We must now consider whether either the zero-degree or 28-degree compartments of the asset constitutes a facility used in connection with a qualified activity for the1987 U.S. Tax Ct. LEXIS 45">*74 bulk storage of fungible commodities. Sec. 48(a)(1)(B)(iii). ²⁴

1987 U.S. Tax Ct. LEXIS 45">*75

In order to qualify as a bulk storage facility the zero-degree and/or 28-degree compartments must have the following attributes:

(1) Facility used in connection with a qualified activity;

(2) Used for bulk storage;

(3) Storage of fungible commodities.

The parties have stipulated that the facility is used for storage of fungible commodities. Accordingly, this requirement is deemed satisfied. With respect to the question of whether there is a qualified activity, we refer to our discussion supra, in which we discuss and conclude that because the commodities stored in the zero-degree and 28-degree compartments are not processed by petitioner, these compartments are not used in connection with a 88 T.C. 816">*831 qualified activity. Accordingly, this condition is not satisfied, and the zero-degree and 28-degree compartments cannot qualify for investment credit as bulk storage facilities used in connection with a qualified activity.

We must proceed further to determine if the air-cooled condensers and commercial engine or any parts thereof qualify for the investment credit. Respondent argues that even if we find that the asset is not a1987 U.S. Tax Ct. LEXIS 45">*76 building under section 1.48-1(e)(1), Income Tax Regs., these parts of the asset are in any event structural components of a building. ²⁵

1987 U.S. Tax Ct. LEXIS 45">*77 Thus, we need to determine whether the air-cooled condensers or commercial engine qualify for the investment credit or whether they are nonqualifying structural components. Petitioner cites specifically the provisions that exclude machinery, the sole justification for the installation of which is to meet temperature or humidity requirements which are essential for the operation of other machinery or the processing of materials or foodstuffs. Petitioner argues that the air-cooled condensers and commercial engine were installed precisely for the purpose of processing of foodstuffs. ²⁶

In support of its argument, petitioner cites Rev. Rul. 81-240, 1981-2 C.B. 11, 12. In that ruling, the taxpayer 88 T.C. 816">*832 rented storage1987 U.S. Tax Ct. LEXIS 45">*78 space in rooms of varying temperatures depending upon the need of the customer. Some rooms had no temperature control (dry space), some rooms had temperature control (temperature maintained within a specific temperature range); and some rooms were refrigerated, e.g., 35 degrees or zero degrees. There were separate, individual-room refrigeration units (10 roof-top condenser units and 20 ceiling-mounted evaporators). No duct work was required. The Commissioner held that the refrigeration units which were used solely to provide cooling of perishable goods were not related to the ordinary operation or maintenance of the building but rather related to the cold storage and low-temperature spoilage prevention of customers' products. Thus, the ruling held that the units were not structural components of the building.

Respondent argues that there is no "processing" of materials or foodstuffs ²⁷ in the structure, thus the exception provided by this regulation does not apply. While the term processing is not defined in this particular section of the regulation, section 1.48-1(d)(2), Income Tax Regs., states that the terms "manufacturing," "production," and "extraction" include "the processing1987 U.S. Tax Ct. LEXIS 45">*79 of meat, fish, or other foodstuffs." Further, manufacturing, production, and extraction include construction or reconstruction, processing, manipulating, refining, or changing the form of an article. Respondent thus concludes that since the commodities were essentially stored in the same form in which they were received, there is no processing of foodstuffs.

Curiously enough, respondent's ruling (Rev. Rul. 81-240, 1981-2 C.B. 11, 12) appears to have ignored this aspect of the regulation. While the ruling cites section 1.48-1(e)(2), Income Tax Regs., it never considers the requirements of the "sole justification" test. While neither party raised this point of inconsistency, respondent attempts to distinguish the facts of this case from those of the ruling. Respondent1987 U.S. Tax Ct. LEXIS 45">*80 argues that the units in the ruling were individual units, whereas, in this case, there is a centralized cooling system.

88 T.C. 816">*833 We have carefully reviewed the record on this point. While it appears that there are separate condensers in the various compartments, it also appears, as best we can determine, that the system is entirely connected and operated by one large commercial engine. While the photographs do not reveal large vents or air conduits, the system is connected with pipes to each of the condensers. Thus, the system appears to be a central refrigeration system. Accordingly, we believe that these facts differ from those in respondent's ruling. ²⁸ Thus, the air-cooled condenser and commercial engine do not satisfy the exceptions of section 1.48-1(e)(2), Income Tax Regs., since the sole justification for the installation of the system is not that it is essential for the operation of other machinery or processing of materials or foodstuffs. Instead, this central system has as one of its primary functions, the cooling and freezing of foodstuffs which petitioner does not in any way process (e.g., foodstuffs stored in the zero-degree and 28-degree compartments, which1987 U.S. Tax Ct. LEXIS 45">*81 are received by petitioner, ready for sale to its customers).

The facts here differ from Central Citrus Co. v. Commissioner, 58 T.C. 365">58 T.C. 373-374, where we found that the blowers and coolers qualified under section 1.48-1(e)(2), Income Tax Regs., since the property was used to cool fruit during packaging and prior to shipment.

Based1987 U.S. Tax Ct. LEXIS 45">*82 on the foregoing, we find for respondent except to the extent that the 32-degree room qualifies for investment tax credit.

Decision will be entered under Rule 155.