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oyster shells as oyster cultch" and "therefore, that to allow
[the taxpayer] the higher depletion rate would discriminate
against miners of construction stones." C. J. Langenfelder &
Son, Inc. v. Commissioner, supra at 390. We rejected
respondent's potential-for-use argument and found that, used as
oyster cultch, oyster shells did not compete commercially with
materials that would qualify as rip rap, ballast, road materials,
rubble, and concrete aggregate. We, therefore, held that the
exception circumscribed by the use test did not apply, entitling
the taxpayer to the higher depletion rate.
In Maryland Green Marble Corp. v. United States, 528 F.2d 51
(4th Cir. 1975), the Court of Appeals for the Fourth Circuit
interpreted the use test to mean: sold or used for the same
purpose as, and in competition with, construction stones. The
taxpayers' marble and quartzite chips were used in the
manufacture of terrazzo flooring and architectural precast
panels, respectively, for their distinctive coloring and
decorative qualities. The Court of Appeals found that these
features distinguished the chips from ordinary hard stone and
that the chips did not compete with ordinary construction stones.
It held that the taxpayers were entitled to the higher depletion
rate.
In Bonsal Co. v. United States, 72-1 USTC par. 9175, 29 AFTR
2d 72-535 (W.D.N.C. 1971), the only case dealing with rock used
for landscaping purposes, the District Court looked strictly to
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