James S. & Denise D. Goodfellow, Daniel R. & Claudia Goodfellow, James B. & Nancy B. Goodfellow - Page 14




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          assertion, the mere fact that GBI had to remove and dispose of              
          the unusable materials does not necessarily mean that the                   
          landowners surrendered an interest in those materials when they             
          were in place.  In fact, given that the materials were only                 
          characterized as unusable after they were inspected by the                  
          engineer following excavation, we conclude to the contrary that             
          all interests in the unusable materials which the landowners                
          surrendered to GBI were in materials not in place.  This factor             
          favors respondent.                                                          
               As to the fifth factor, petitioners observe that the                   
          taxpayers in Parsons could not keep or sell any of the coal but             
          were required to deliver it all to the owners.  Petitioners                 
          conclude that this factor favors them because, they claim, GBI              
          never delivered the unusable materials to the landowners.  We               
          disagree with petitioners’ conclusion.  Contrary to their                   
          assertion, GBI was required to and did in fact deliver the                  
          unusable materials to the landowners by way of their engineer.              
          Only after the materials had been excavated and declared unusable           
          by the engineer did GBI’s interest in the unusable materials                
          arise.  This factor favors respondent.                                      
               As to the sixth factor, petitioners observe that the                   
          taxpayers in Parsons received only a set price for each ton of              
          coal mined and delivered.  Petitioners conclude that this factor            
          favors them because GBI received the set amount in the contracts            






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