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The parties have agreed that petitioner's red landscaping
rock qualifies as either dolomite or limestone. As dolomite and
limestone both are listed in section 613(b)(7), and those terms
are more specific than stone, section 613(b)(7), rather than
section 613(b)(6), governs our determination of the proper
depletion rate.
Since petitioner did not sell its red landscaping rock on
bid in direct competition with a bona fide bid to sell a mineral
listed in section 613(b)(3), the focus of this case is on the
"use test". We are asked to decide whether petitioner sold its
red landscaping rock for a purpose similar to rip rap, ballast,
road material, rubble, or concrete aggregates (the enumerated
uses).
Congress added the use test in 1954 in order "to prevent
discrimination in percentage depletion rates between materials
which are used competitively for the same purposes." S. Rept.
1622, 83d Cong., 2d Sess. 77 (1954). When the minerals in the
category "all other minerals", otherwise entitled to a depletion
rate of 14 percent, are used "for certain purposes for which
crushed stone is commonly used, they are to be entitled to a
percentage depletion rate of 5 percent." Id. Congress specified
these certain purposes as "rip rap, ballast, road material,
rubble, concrete aggregates, or for similar purposes". Sec.
613(b)(7). The use test is one of actual use, not possible uses.
The statutory language speaks in terms of actual use. Sec.
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