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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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