Clajon Gas Co., L.P., Aquila Gas Pipeline Corp., Tax Matters Partner - Page 31

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          authority.  Rev. Proc. 87-56 reflects respondent’s class-life               
               Rather than providing guidance to taxpayers, Rev. Proc. 87-            
          56 has produced considerable confusion and uncertainty.  In Duke            
          Energy Natural Gas Corp. v. Commissioner, supra, this Court and             
          the Court of Appeals for the Tenth Circuit, considered the                  
          question before the Court today, and arrived at contrary results.           
          The majority opinion now offers another rationale for its result.           
               Rev. Proc. 87-56 only requires that assets be “used” by                
          natural gas producers to qualify under section 13.2.  In the                
          instant litigation, respondent asserts that assets must be both             
          “used” and “owned” by natural gas producers.  Revenue procedures            
          are promulgated to provide clear and precise guidance                       
          to taxpayers, and I would hold respondent to the plain language             
          of that published guidance.1  To require taxpayers to consult a             
          team of tax attorneys to decipher that guidance frustrates the              
          very purpose for which it was issued.                                       
               SWIFT, BEGHE, FOLEY, VASQUEZ, and MARVEL, JJ., agree with              
          this dissenting opinion.                                                    

               1I note that we have held that the Commissioner may not                
          choose to litigate against an official position the Commissioner            
          has published without first revising or revoking that position.             
          Rauenhorst v. Commissioner, 119 T.C. ___ (Oct. 7, 2002);  Coastal           
          Petroleum Refiners, Inc. v. Commissioner, 94 T.C. 685 (1990); see           
          Phillips v. Commissioner, 88 T.C. 529 (1987), affd. in part and             
          revd. in part 851 F.2d 1492 (D.C. Cir. 1988); see also Slechter             
          v. Commissioner, T.C. Memo. 1987-528.                                       

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