Peabody Natural Resources Company, f.k.a. Hanson Natural Resources Company, Cavenham Forest Industries, Inc., A Partner Other Than The Tax Matters Partner - Page 10

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          granted with respect to a legal issue, if there is “no genuine              
          issue as to any material fact and * * * a decision may be                   
          rendered as a matter of law.”  Rule 121(a) and (b); Craig v.                
          Commissioner, 119 T.C. 252, 259-260 (2002); Sundstrand Corp. v.             
          Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th               
          Cir. 1994).  There is no disagreement between the parties as to a           
          material fact, and therefore this matter is ripe for summary                
          judgment.                                                                   
          I.  New Mexico Law:  Are the Supply Contracts Real Property?                
          Petitioner argues that the supply contracts are real property               
          under New Mexico law, whereas respondent argues the contracts are           
          not real property but some type of intangible right.                        
               A.  Petitioner’s Arguments                                             
               Petitioner contends that the supply contracts are real                 
          property under New Mexico law.  Petitioner asserts that each                
          contract established a servitude under which Santa Fe and                   
          successive owners of the Lee Ranch mine land have the obligation            
          to mine and supply the coal needed pursuant to that contract to             
          operate the utility’s power plant.  This servitude, petitioner              
          maintains, is a real property interest under New Mexico law.                
               B.  Respondent’s Arguments                                             
               Respondent contends that the supply contracts are not real             
          property under New Mexico law, relying on the fact that the                 
          contracts did not result in a transfer of ownership of the coal             






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