- 14 - have helped producers produce and sell their gas in the market does not mean that the systems are exploration or production assets within * * * asset class 13.2.” Id. In reversing our decision in Duke Energy, the Court of Appeals for the Tenth Circuit reasoned that “the plain language of Asset Class 13.2 leads most logically to a reading that includes Duke’s gathering systems even though they are ‘used by’ producers through contractual arrangements with Duke.” Duke Energy Natural Gas Corp. v. Commissioner, 172 F.3d at 1259. The Court of Appeals stated that “Duke’s gathering systems are literally used by producers for gas production in a number of different ways”, id. at 1258, noting the parties’ agreement that “producers would not be able to produce natural gas in the absence of an adequately designed gathering system”, id. After reviewing the overall function and usage of gathering systems, the Court of Appeals stated that “the economic character of Duke’s gathering activities is more akin to production than pipeline operation.” Id. at 1259. The Court of Appeals rejected the Government’s argument that the words “used by” in 13.2 incorporate an ownership requirement, reasoning: “‘Use’ does not mean ‘own’ in either the legal dictionary definition of the word use * * * nor in everyday parlance.” Id. Ultimately, the Court concluded as follows:Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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