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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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Last modified: May 25, 2011