dissenting: The majority misconstrues the unambiguous language of section 29. See generally United States v. Merriam, 263 U.S. 179, 187 (1923) (stating that tax statutes are not to be extended by implication beyond the clear import of the language used). Accordingly, I respectfully dissent.
1. Number of Barrel-of-Oil Equivalents
Section 29(a) allows taxpayers a credit equal to $3 multiplied by “the barrel-of-oil equivalent [boe] of qualified fuels” sold. Citing the legislative history, the majority, in essence, contends that a section 29 credit is based on the energy content of the gas produced and sold. Although the legislative history states that the “credit is $3 for the production of each unit of 5.8 million Btus of energy,” H. Conf. Rept. 96-817, at 140 (1980), 1980-3 C.B. 245, 300 (emphasis added), Congress enacted a different computation (i.e., the credit is $3 multiplied by the BOE of qualified fuels), and the legislative history does not take precedence over the statute.
The issue is: What was the BOE of the qualified fuels sold? During 1993 and 1994, S/V sold approximately 179,000 mcf (i.e., thousand cubic feet) of gas. The energy produced by this amount of gas is equal to that produced by 32,410 barrels of oil (i.e., 32,410 BOE). Section 29, however, does not simply provide a credit of $3 per BOE of energy. The credit is calculated by multiplying $3 by “the barrel-of-oil equivalent of qualified fuels” sold. Sec. 29(a) (emphasis added). Pursuant to section 29, the 179,000 mcf of gas sold by S/V is equal to 49,337 BOE of qualified fuels: 32,410 BOE of gas produced from a tight formation and 16,927 BOE of gas produced from Devonian shale. The sale of this gas meets the requirements of two different categories of qualified fuels (i.e., gas produced from a tight formation and gas produced from Devonian shale), and section 29 does not provide that the BOE’s of dual qualified gas are counted only once. While subsections (b) and (e) list limitations relating to the credit, none of these limitations are applicable.
2. The Inflation Adjustment
All of the gas sold by SAT was derived from rock formations that qualified as both Devonian shale and a tight formation. The majority holds that a portion of S/V’s credit is calculated (i.e., adjusted for inflation) pursuant to the rules applicable to gas produced from Devonian shale. This holding, however, is contrary to section 29(b)(2), which explicitly provides that “In the case of gas from a tight formation, the $3 amount in subsection (a) shall not be adjusted.” (Emphasis added.) If the credit is to be based on 32,410 BOE of gas, I agree with Judge Vasquez that S/V is entitled to a credit of only $97,230 (i.e., $3 x 32,410 BOE) rather than the $143,964 allowed by the majority.
The majority sidesteps this issue by “[considering] respondent to have conceded” that the credit should be indexed. This is an inaccurate characterization of respondent’s position. Respondent contends that S/V is entitled to the greater of either a credit based on the rules applicable to gas produced from a tight formation (i.e., $3 x 32,410 BOE) or a credit based on the rules applicable to gas produced from Devonian shale (i.e., $3 (adjusted for inflation) x 16,927 BOE). Indeed, respondent’s alternative position1 is that if 32,410 BOE of S/V’s gas qualifies for the credit, the credit is based on the rules applicable to gas produced from a tight formation and, thus, not adjusted for inflation. In addition, why should respondent be considered “to have conceded this issue” when the issue was not briefed by either party? In support of its conclusion, the majority cites cases that are not applicable. In these cases, the courts appropriately concluded that a taxpayer made a concession when the taxpayer failed to address an issue that previously had been raised.2
In sum, the majority’s holding is contrary to section 29(a) and (b)(2), not supported by case law,3 and premised on a mischaracterization of respondent’s position. We “are not at liberty * * * to add to or alter the words employed to effect a purpose which does not appear on the face of the statute.” Hanover Bank v. Commissioner, 369 U.S. 672, 687 (1962). Petitioner is entitled to a total credit of $148,011 (i.e., $3 x 49,337 boe) rather than the $143,964 allowed by the majority.
In his opening brief, respondent states: “In the pursuit of fairness, respondent allowed SW Drilling the I.R.C. § 29 credit for Devonian shale gas, since this credit was inflation adjusted and, consequently, greater in amount than the credit provided for tight sands gas.”
See Askew v. United States, 680 F.2d 1206, 1208 n.2 (8th Cir. 1982) (stating that taxpayer “apparently concedes this point because he makes no argument on appeal” relating to a fact that the Government had established at trial); Levin v. Commissioner, 87 T.C. 698, 722-723 (1986) (stating that “petitioners have made no argument with respect to the other deductions” disallowed in notices of deficiency), affd. 832 F.2d 403 (7th Cir. 1987); Zimmerman v. Commissioner, 67 T.C. 94, 104 n.7 (1976) (stating that the taxpayers made an allegation in their petition, but “at trial and on brief they made no argument in this regard and we deem them to have conceded this issue”).
As support for the holding, the majority cites United States v. Skelly Oil Co., 394 U.S. 678 (1969), Charles Ilfeld Co. v. Hernandez, 292 U.S. 62 (1934), and United Telecomms., Inc. v. Commissioner, 589 F.2d 1383 (10th Cir. 1978). These cases, however, are distinguishable because the applicable statutes or regulations prohibited double deductions or credits. See United States v. Skelly Oil Co., supra at 682-683 (reasoning that the applicable sections of the Code and the case law developed under those sections prohibited double deductions); Charles Ilfeld Co. v. Hernandez, supra at 67 (concluding that the regulations prohibited double deductions); United Telecomms., Inc. v. Commissioner, supra at 1387-1388 (concluding that the applicable legislative regulations prohibited double credits); cf. Transco Exploration Co. v. Commissioner, 95 T.C. 373, 387 (1990) (holding that, based on plain language of the statute, the taxpayer was entitled to a double benefit), affd. 949 F.2d 837 (5th Cir. 1992).