Clajon Gas Co., L.P., Aquila Gas Pipeline Corp., Tax Matters Partner - Page 16

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          “follow a Court of Appeals decision which is squarely in point              
          where appeal from our decision lies to that Court of Appeals”.              
          At the time the petition was filed, Clajon’s principal place of             
          business was San Antonio, Texas.  Pursuant to section                       
          7482(b)(1)(E), an appeal from our decision in this case would               
          likely lie to the Court of Appeals for the Fifth Circuit, where             
          there is no authority on point.  We are, therefore, not required            
          by Golsen to follow the Court of Appeals for the Tenth Circuit’s            
          decision in Duke Energy Natural Gas Corp. v. Commissioner, supra.           
          VI. The Gathering Pipelines Fall Within 46.0 Rather Than 13.2               
               Because Clajon Was Not a “Producer,” and It Is Clajon’s Use            
               That Is Relevant                                                       
               A.  Analysis                                                           
                    1.  Clajon Was Not a “Producer” of Natural Gas                    
               In order for the gathering pipelines to be included in 13.2,           
          it is necessary that they be “used by” a natural gas “producer”             
          for “production of” natural gas.  There is, thus, both an “actor”           
          requirement (used by) and an “activity” requirement (the                    
          production of natural gas) necessary for 13.2 classification.               
          The actor requirement is satisfied if the gathering pipelines are           
          used by a natural gas “producer”.  Duke Energy conceded that it             
          was “not a producer of gas as that term is used in the asset                
          class descriptions of MACRS.”  Duke Energy Natural Gas Corp. v.             
          Commissioner, 172 F.3d at 1256 n.2 (apparently referring to the             

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