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arise whether the $3 should be indexed for that fuel. The
parties did not brief this issue.
The first of respondent’s two alternative positions is that
S/V qualifies for a credit based on the 16,927 BOE’s of gas S/V
produced from a source that was both Devonian shale and a tight
formation at a rate of $3 (indexed). It is inherent in that
position that respondent accepts that the $3 credit is indexed
for gas produced from both a tight formation and Devonian shale.
Indeed, respondent has made no argument that the credit should
not be indexed for the natural gas S/V produced from Devonian
shale even though it was also from a tight formation. Under
these circumstances, we consider respondent to have conceded this
issue. See Askew v. United States, 680 F.2d 1206, 1208 n.2 (8th
Cir. 1982); Levin v. Commissioner, 87 T.C. 698, 722-723 (1986),
affd. 832 F.2d 403 (7th Cir. 1987); Zimmerman v. Commissioner, 67
T.C. 94, 104 n.7 (1976).
C. Conclusion
We hold that petitioner is entitled to a credit of (1) $3
per BOE on 15,483 BOE’s of natural gas produced from a tight
formation, and (2) $3 (indexed) per BOE on 16,927 BOE’s of
natural gas produced from both Devonian shale and a tight
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