- 21 - separation." Watson v. Commissioner, supra at 552. We think the instant case is more like Butler Consol. Coal Co. v. Commissioner, supra, because the unmined sand was not separated from the land. Respondent contends that Butler Consol. Coal is distinguishable from this case. Respondent points out that petitioners operated the sand mine until the day they exchanged the land, while the taxpayer in Butler Consol. Coal stopped operating the mine 11 years before the transaction at issue. We disagree that the distinction is material. The Court in Butler Consol. Coal observed that "Coal in place is a part of the realty." Primarily for that reason, the Court rejected the Commissioner's argument that the coal in place was held by the taxpayer for sale to customers in the ordinary course of business. In the present case, similarly, the sand in question had not been mined or otherwise separated from the realty. In addition, we have found that the parties to the sale did not intend to sell and buy sand as part of the transaction. Respondent contends that the instant case is like Clemente, Inc. v. Commissioner, T.C. Memo. 1985-367. There, the taxpayer exchanged the right to extract gravel from one parcel of land (but did not exchange the land itself) for another parcel of land. The issue before the Court was whether land and the right to extract gravel from land were of a like kind. That case doesPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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