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the statutory language of section 613(b)(7) and did not consider
competition to be a "significant consideration". It held that
the uses of quartzite for roofing, mosaic panels, golf course
sandtraps, and landscaping were not purposes similar to rip rap,
ballast, road material, rubble, or concrete aggregates in the
conventional sense and allowed the taxpayer the higher depletion
rate for these uses.
In the instant case, respondent argues that landscaping is
a construction use and that petitioner's red landscaping rock
competes with materials that could be used for one of the
enumerated uses, including petitioner's red rock used as concrete
aggregate.
Since actual use is the focus of the use test, whether the
sale of petitioner's red landscaping rock competes with the sale
of its same rock as concrete aggregate is not a determination.
In this connection, we think it highly significant that
petitioner kept detailed records that separated the sales of 3/4"
red rock for concrete aggregate from sales of the same rock as
landscaping rock and claimed only the 5 percent on the former.4
Furthermore, although the legislative history records Congress'
concern about competition between the listed minerals and common
4 Respondent has not questioned the accuracy of these
records either as to allocations of quantities or sales amounts.
Cf. Reagan v. Commissioner, T.C. Memo. 1973-266, where respondent
did not question the application of the 5-percent and 14-percent
rates to different uses of the same mineral.
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