dissenting: I disagree with the majority’s analysis and holding.
I. The Texas Gathering Systems (TGS) Were Production
Assets
Revenue Procedure 87-56, 1987-2 C.B. 674, 678, states that asset class 13.2 includes “assets used by * * * natural gas producers for * * * production of * * * natural gas, including gathering pipelines”. As the trial Judge I concluded, after analyzing all of the relevant evidence and testimony, that Clajon’s pipelines were gathering systems “used by” producers in the production of natural gas. Gathering systems are essential to the production process because they treat unprocessed natural gas by removing water, hydrogen sulfide, and carbon dioxide.1 Without dehydration and treatment, the gas cannot be used, and transmission companies would not accept it for transportation to ultimate consumers. Indeed, without a properly designed gathering system the gas would never be produced at all but would simply remain in the ground. Thus, the services provided by Clajon were an integral part of the production process.
II. The Plain Meaning of Asset Class 13.2 Controls
I agree with the analysis and conclusion of the Court of Appeals for the Tenth Circuit in reversing Duke Energy Natural Gas Corp. v. Commissioner, 109 T.C. 416 (1997) (Duke Energy I), revd. 172 F.3d 1255 (10th Cir. 1999) (Duke Energy II). The Court of Appeals correctly refused to incorporate an ownership requirement into the phrase “used by” in asset class 13.2. Id. The court stated: “The literal terms of [asset class 13.2] include any gathering system, so long as it is used by a gas producer.” 172 F.3d at 1259. Contrary to our opinion in Duke Energy I, the Court of Appeals concluded that gathering systems owned by a nonproducer were ‘“used by’ producers through contractual arrangements”. Id. Our holding in Duke Energy I should be overruled.
The central issue is whether the gathering systems were “used by” producers. Absent some ambiguity, the plain meaning of a statute or regulation controls its interpretation. “Use” is not a difficult word to interpret or understand. See Black’s Law Dictionary 1541 (6th ed. 1990) (defining “use” as follows: “to convert to one’s service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain an end”). The majority’s holding that the gathering system must be owned by natural gas producers is contrary to the common understanding of the phrase “used by”.
The majority acknowledge that the decision of the Court of Appeals was based on the plain language of asset class 13.2 (i.e., the phrase “used by * * * natural gas producers”). See majority op. p. 205. The majority, however, fail to analyze this language or present any cogent reasons why we should not strictly adhere to it. Without first finding that the language of asset class 13.2 is ambiguous, the majority begin their analysis of respondent’s revenue procedures using “historical material” to conclude that asset depreciation range classes were designed to encompass industries and entities rather than assets. See majority op. p. 203. Historical development, like legislative history, is a far less accurate embodiment of intent than plain language and is susceptible to a wide array of interpretations. Only after this historical analysis do the majority turn to the plain meaning. Even then, a plain meaning analysis is applied only to asset class 46.2.
III. The Majority Misinterpret the Primary Use Doctrine
Before Clajon purchased the Southeast Texas Pipeline System (setps) (i.e., the largest of the six systems), it is indisputable that this system was used primarily by natural gas producers in the production process. Clajon continued to operate the setps without changing the system’s primary use. The producers connected to the TGS needed a gathering system to further the production process by removing impurities and delivering their gas to processing facilities. Indeed, all of the producers connected to the TGS had contractual agreements to, and did in fact, "use” Clajon’s gathering systems. Even in contracts where title passed to Clajon, the gathering system remained the means by which the producers’ gas ultimately traveled to the gas processing plant and transmission lines. Contrary to the majority’s holding, the primary use of the TGS was the same regardless of who owned the systems or the gas flowing through the systems.
The majority base their holding on the theory that the availability of all asset classes depends on the primary use of the taxpayer rather than the primary use of the asset. This is, essentially, an ownership requirement. Such a theory is inconsistent with the law. Section 1.167(a)-ll(b)(4)(iii)(6), Income Tax Regs., states that “Property shall be classified according to primary use even though the activity in which such property is primarily used is insubstantial in relation to all the taxpayer’s activities.” This regulation unequivocally states that, regardless of the taxpayer’s activities, the primary use of the asset determines the appropriate asset class for purposes of depreciation.
The majority interpret section 1.167(a)— 11 (b)(4)(iii)(6), Income Tax Regs., as if it read that the property shall be classified according to the “taxpayer’s primary use”. See majority op. p. 208. We, however, must take the law as we find it. The regulation specifically states that our focus is the property’s primary use. Moreover, the language of asset class 13.2 requires only that the asset be “used by” a natural gas producer in the production of natural gas. Clajon’s gathering systems meet the requirement even though Clajon was not a producer.
IV. Conclusion
The plain language of asset class 13.2 does not require that a gathering system be “owned by” a natural gas producer to be included in that asset class. While respondent is free to issue revised guidance, Rev. Proc. 87-56, supra, simply requires that a gathering system be “used by * * * a natural gas producer” in order to fall within asset class 13.2. The TGS is so used. Accordingly, the majority’s conclusion is incorrect, and petitioner is entitled to recover the cost of the gathering systems over a 7-year period.
Wells, Swift, Beghe, Vasquez, and Marvel, JJ., agree with this dissenting opinion.Pipes in a gathering system, generally, deteriorate faster and have to be replaced more frequently than long-distance transmission pipelines. Because gathering system pipes have shorter physical lives than transmission pipelines, it is reasonable to conclude that Clajon’s gathering systems are within the asset class with the shorter recovery period.