Clajon Gas Co., L.P., Aquila Gas Pipeline Corp., Tax Matters Partner - Page 39

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               The majority interpret section 1.167(a)-11(b)(4)(iii)(b),              
          Income Tax Regs., as if it read that the property shall be                  
          classified according to the “taxpayer’s primary use”.  See                  
          majority op. p. 19 (emphasis added).  We, however, must take the            
          law as we find it.  The regulation specifically states that our             
          focus is the property’s primary use.  Moreover, the language of             
          asset class 13.2 requires only that the asset be “used by” a                
          natural gas producer in the production of natural gas.  Clajon’s            
          gathering systems meet the requirement even though Clajon was not           
          a producer.                                                                 
          IV. Conclusion                                                              
               The plain language of asset class 13.2 does not require that           
          a gathering system be “owned by” a natural gas producer to be               
          included in that asset class.  While respondent is free to issue            
          revised guidance, Rev. Proc. 87-56 simply requires that a                   
          gathering system be “used by * * * a natural gas producer” in               
          order to fall within asset class 13.2.  The TGS is so used.                 
          Accordingly, the majority’s conclusion is incorrect, and                    
          petitioner is entitled to recover the cost of the gathering                 
          systems over a 7-year period.                                               
               WELLS, SWIFT, BEGHE, VASQUEZ, and MARVEL, JJ., agree with              
          this dissenting opinion.                                                    

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