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CALLAHAN MINING CORPORATION v. C.I.R.

Nos. 678-679, Dockets 34070, 34166.

428 F.2d 721 (1970)

CALLAHAN MINING CORPORATION and Subsidiary, Pinnacle Exploration, Inc., Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. CALLAHAN MINING CORPORATION and Subsidiary, Pinnacle Exploration, Inc., Cross-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Cross-Appellant.

United States Court of Appeals, Second Circuit.

Decided June 29, 1970.

Attorney(s) appearing for the Case

Robert H. Preiskel, New York City (Strasser, Spiegelberg, Fried & Frank, Richard O. Loengard, Jr., Daniel C. Schaffer, New York City, of counsel), for petitioners-appellants-cross-appellees.

Bennet N. Hollander, Atty., Dept. of Justice, Washington, D. C. (Johnnie M. Walters, Asst. Atty. Gen., Lee A. Jackson, Grant W. Wiprud, Attys., Dept. of Justice, Washington, D. C., of counsel), for the Commissioner.

C. Rudolf Peterson, Thomas E. Jenks, George W. Beatty, Washington, D. C., submitted a brief for American Smelting and Refining Company, as amicus curiae.

Before SMITH and HAYS, Circuit Judges and BARTELS, District Judge.

HAYS, Circuit Judge:

This appeal concerns the proper allocation of the percentage depletion deduction between the lessor and the lessee of certain mining property. The Tax Court determined that an allocation of the depletion deduction to the lessor, appellant Callahan Mining Corporation, based upon the fifty percent share of net profits payments which it received under the terms of the lease represented an "equitable apportionment" satisfying the mandate of the relevant...

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