Stephen R. and Mary K. Herbel - Page 35

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             above, if the transaction did not involve an economic                    
             interest in the mineral in place, then the owner of the                  
             mineral would not necessarily derive ordinary income in the              
             year of the transaction in the amount of the consideration               
             paid for the interest, but would continue to be taxed on                 
             the income derived from the mineral property without regard              
             to the transaction.  Christie v. United States, 436 F.2d                 
             1216 (5th Cir. 1971).                                                    
                  Contrary to petitioners' argument, we find no basis                 
             to conclude that Congress intended to apply section 636                  
             "in all cases without regard to whether the 'purchaser'                  
             acquired an interest in the minerals which would constitute              
             an 'economic interest' within the traditional meaning of                 
             the term."  We conclude that Congress intended section                   
             636 to apply only when the production payment qualifies as               
             an economic interest in the mineral in place.  Accordingly,              
             we reject petitioners' argument that section 1.636-3(a)(1),              
             Income Tax Regs., is not consistent with the congressional               
             purpose in enacting section 636 because it limits the                    
             definition of the term "production payment" to a right to                
             production which is "an economic interest in such mineral                
             in place".                                                               
                  The principal question presented by petitioners'                    
             motion for summary judgment is whether, under general tax                
             principles, Arkla's payment is an advance payment for gas                






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