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created. If a materially indistinct copy of the seismic data
tapes and film could be reproduced from another pass over the
relevant portion of the earth's surface, this Court would assert
that the intrinsic value of the property is in the seismic data
and not in the tapes and film, contrary to the Fifth Circuit's
conclusion. That discrepancy exists because this Court, under
the rationale of Ronnen v. Commissioner, 90 T.C. 74 (1988), and
its progeny, would likely focus on the theoretical duplicability
of the seismic data tapes and film in determining whether the
seismic data exists as property separate and apart from its
physical manifestation, whereas the Fifth Circuit would focus on
the nonexistence as property of the particular seismic data in
the absence of a recording of that data on some tangible medium.
In addition, the Sixth Circuit's interpretation of the test
of tangibility created by the Fifth Circuit in Texas Instruments,
Inc. v. United States, supra, referred to as the “totally
dependent” test in Comshare, Inc. v. United States, supra, may
lead to anomalous results. By focusing on whether a taxpayer's
investment can be put to productive use in the absence of the
tangible medium, the Sixth Circuit's approach would conceivably
characterize both the information underlying a complex patent
that could only be conveyed to and used by a purchaser if
embodied in some tangible medium and the associated intellectual
property rights of that patent as tangible personal property for
purposes of the ITC. Arguably, however, that result would be
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