Bryan Rock Products, Inc. and Subsidiary - Page 11

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               Initially, respondent argues that petitioner's red                     
          landscaping rock should be classified as "stone" under section              
          613(b)(6) because the red landscaping rock was not used for its             
          chemical or metallurgical properties; this classification would             
          result in a 5-percent depletion rate.  Prior to the enactment of            
          the 1954 Code, the predecessor to section 613(b) provided a 5-              
          percent depletion rate for sand, gravel, and stone; a 10-percent            
          rate for dolomite; and a 15-percent rate for chemical and                   
          metallurgical grade limestone.  Sec. 114(b)(4)(A) of the 1939               
          Code, as amended by the Revenue Act of 1951, ch. 521, sec.                  
          319(a), 65 Stat. 452, 497; G. & W. H. Corson, Inc. v.                       
          Commissioner, 54 T.C. 668, 675 (1970), affd. 453 F.2d 578 (3d               
          Cir. 1971).  However, in section 613(b) of the 1954 Code, the               
          qualifiers "chemical grade" and "metallurgical grade" were                  
          dropped from limestone, dolomite was added to the 15 percent (now           
          14 percent) depletion rate category, and the "use test", i.e.,              
          "when used, or sold for use, by the mine owner or operator as rip           
          rap, ballast, road material, rubble, concrete aggregates, or for            
          similar purposes", was added.  Thus, whether limestone is of                
          chemical grade is no longer a factor.  G. & W. H. Corson, Inc. v.           
          Commissioner, supra; see also C. J. Langenfelder & Son, Inc. v.             
          Commissioner, 69 T.C. 378 (1977) (chemical attributes test                  
          rejected for use of oyster shells).  Accordingly, the chemical              
          and metallurgical properties foundation of respondent's argument            
          falls by the wayside.                                                       




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