- 14 - 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 withPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011