location of the other newsracks is unclear.   Without knowing the location of the other newsracks, it is impossible to analyze the accuracy of the government's assertions.   I would hold that the government did not carry its burden.


74
My conclusion is bolstered by other facts that cast doubt on the government's position.   Mr. Jacobsen placed his newsrack next to several other newsracks in each instance.   Mr. Jacobsen's newsrack was first removed in September 1985.   This lawsuit was filed November 1985.   Mr. Jacobsen's newsrack was removed from its second location in January 1986.   None of the other newsracks which were located in the same "hazardous" area as Mr. Jacobsen's, were moved to the curb until August 1987.5  This is irrespective of whether it is a public or nonpublic forum


6
 The regulation states that the tax is "50 per centum of all vending machine income," and the regulation defines "Vending Machine Income" as
receipts (other than those of a blind vendor) from vending machine operations on Federal property, after deducting the cost of goods sold (including reasonable service and maintenance costs in accordance with customary business practices of commercial vending concerns), where the machines are operated, serviced, or maintained by, or with the approval of, a department, agency, or instrumentality of the United States, or commissions paid (other than to a blind vendor) by a commercial vending concern which operates, services, and maintains vending machines on Federal property for, or with the approval of, a