- 16 - “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 thePage: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
Last modified: May 25, 2011