Bryan Rock Products, Inc. and Subsidiary - Page 14

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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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