James S. & Denise D. Goodfellow, Daniel R. & Claudia Goodfellow, James B. & Nancy B. Goodfellow - Page 8




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          deduction to the amount of any investment.  United States v.                
          Swank, 451 U.S. 571, 576 (1981).  Percentage depletion deductions           
          continue as long as minerals are extracted from the property, and           
          even where a taxpayer has invested no money in the deposit.  Id.            
          at 576-577.  Nor must the taxpayer claiming percentage depletion            
          as to a mineral deposit have legal title over the deposit.  Kirby           
          Petroleum Co. v. Commissioner, supra; Lynch v. Alworth-Stephens             
          Co., 267 U.S. 364 (1925).  The linchpin of a percentage depletion           
          deduction is that the taxpayer has an economic interest in the              
          mineral deposit for which the deduction is claimed.  Commissioner           
          v. Southwest Exploration Co., supra; Kirby Petroleum Co. v.                 
          Commissioner, supra at 603.                                                 
               Here, we find that GBI never had the requisite economic                
          interest in the minerals (unusable materials) in place.  GBI                
          neither purchased by investment, nor contracted for, any interest           
          in those materials as they sat embedded in the ground.  GBI                 
          received the materials only after they were rejected by the                 
          landowners’ engineer following the materials’ excavation from the           
          ground.  GBI’s receipt of the unusable materials at that time               
          resulted from its contractual obligation to dispose of minerals             
          once owned and now abandoned by the landowners, rather than from            
          its purchase of minerals from the landowners.3                              

               3 We express no opinion as to whether we would have decided            
          this case differently had the landowners agreed to sell to GBI an           
                                                             (continued...)           





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