Peabody Natural Resources Company, f.k.a. Hanson Natural Resources Company, Cavenham Forest Industries, Inc., A Partner Other Than The Tax Matters Partner - Page 21

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          character of the properties as distinguished from their grade or            
          quality.  Id.; sec. 1.1031(a)-1(b), Income Tax Regs.                        
               In Commissioner v. Crichton, 122 F.2d 181, 182 (5th Cir.               
          1941), affg. 42 B.T.A. 490 (1940), the Court of Appeals for the             
          Fifth Circuit held that the exchange of an overriding royalty               
          interest in minerals for a city lot qualified as a like-kind                
          exchange.  See also Rev. Rul 68-331, 1968-1 C.B. 352, in which it           
          was ruled that the exchange of an oil producing lease for a fee             
          simple title to a ranch qualified as a like-kind exchange.                  
               Conversely, in Fleming v. Commissioner, 24 T.C. at 823-824,            
          we held that the exchange of an assignment of carved-out oil                
          payment rights for a fee interest in real estate failed to                  
          qualify because they were not like-kind properties, even though             
          applicable State law characterized the oil payment rights as an             
          interest in real estate.                                                    
               In Koch v. Commissioner, 71 T.C. at 65, we reconciled the              
          difference in the holdings of Crichton and Fleming as follows:              
               The main distinction between the two transactions is                   
               the duration of the interests--an overriding royalty                   
               interest continues until the mineral deposit is                        
               exhausted whereas a carved-out oil payment right                       
               terminates usually when a specified quantity of                        
               minerals has been produced or a stated amount of                       
               proceeds from the sale of minerals has been received.                  
               Petitioner attempts to distinguish the coal supply contracts           
          here from the carved-out production payment rights in Fleming, on           
          the basis that the supply contracts are more extensive in scope             






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