- 43 - therefore decide whether petitioner did all that was in its power to place the rigs at issue into service. All of the CDC and Eason rigs were subject to the Suits agreement. Both John Rogers and Jerry Suits testified that during the taxable years at issue, both CDC and Eason owned fleets of drilling rigs that they held as part of their drilling business. Respondent points to a Texas sales and use tax audit of 12 of the rigs in question, in which Samson argued that the rigs were not subject to Texas use tax because it purchased them for resale. This, however, was merely one of several alternative arguments asserted by petitioner in the use tax audit. In audit questionnaires in the Texas use tax proceeding, CDC described its business operations as “oil and gas drilling” in 1988 and “oil and gas operations” in 1991. Additionally, petitioner and the State of Texas have agreed to defer to this Court for resolution of this issue. If we determine that CDC is allowed depreciation deductions, then it will be liable for Texas use tax. In Sears Oil Co. v. Commissioner, 359 F.2d 191 (2d Cir. 1966), affg. in part, revg. in part and remanding T.C. Memo. 1965-39, the taxpayer purchased a canal barge that it was unable to use until the following year because the canal froze. The court found that the taxpayer was entitled to depreciation in the year of purchase because (1) the barge was gradually deteriorating as it was “subject to the weather elements”, (2)Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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