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was used primarily as a base for road surface. Other
manufacturers of Poz-O-Pac used gravel instead of limestone. We
found that the function of the limestone in the Poz-O-Pac was
similar to the function of road material in the laying of asphalt
and other forms of roadways. Poz-O-Pac also competed with
concrete, and the limestone in the Poz-O-Pac had a significant
use similar to a concrete aggregate. The primary use of the
taxpayer's masonry cement was as a mortar. We found that the
limestone in the product served the purpose of aggregate
comparable to that mixed with Portland cement to make other
masonry cements or mortars. The taxpayer's limestone acted as a
functional substitute for, and thus in actual competition with,
materials used as road material and concrete aggregate.
Consequently, we held that the lower depletion rate applied to
the limestone so used by the taxpayer.
In C. J. Langenfelder & Son, Inc. v. Commissioner, supra,
the taxpayer dredged oyster shells for sale as cultch, a surface
to which oyster larvae could attach and grow into mature oysters.
Mollusk shells, including oyster shells, are listed in section
613(b)(7). Following G. & W. H. Corson, Inc. v. Commissioner,
supra, we rejected respondent's argument that use for physical
rather than chemical attributes leads to the lower depletion rate
and applied the use test. We found that the use of oyster
shells as cultch was not a construction use. Respondent argued
"that construction stones could have been used competitively with
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