Circuit Judge.
I dissent.
1. The depletion allowance is applicable under section 611 of the Internal Revenue Code only if the aggregates and cobbles here involved are “natural deposits.” I think that the processes that occurred during the operation of the gold dredge, which consisted essentially of picking up mixed gold, sand, gravel and cobbles from the place where nature had put them, sorting them into three components, to wit, (1) free gold, (2) sand, and (3) gravel and cobbles, keeping *213out the gold, and depositing the sand in one layer and the gravel and cobbles in another on top of the sand, in a physically different location from that from which the mixed gold, sand, gravel and cobbles were removed, changed the deposit from a natural to an artificial one. I can see no real distinction between this situation and that which occurs when material is removed from an open pit mine and the residue, after extracting the gold or other desired mineral, is piled nearby, or indeed, when mineral-bearing rock is removed from an underground mine and the residue, after processing, is then piled in tailing piles. It is true that, usually, in these two cases, the extracted metal is not free metal and it is removed by crushing and chemical processes, as well as by sorting and washing, which occurred in this case. Nevertheless, I cannot see how it can be fairly said that what is left over here is a natural, and not an artificial deposit, merely because here the method of extraction of the gold was purely mechanical. Beside the fact of sorting and movement, there was a 40% increase in volume that was produced. There is another factor: there was removed from the natural deposit the most valuable thing that was a part of it, namely, the free gold. Thus, what was redeposited is not the same thing as the original deposit. In Consolidated Chollar Gould & Savage Mining Co. v. Commissioner, 9 Cir., 1943, 133 F.2d 440, we held that dumps consisting of rock and ore material which had never been milled or processed in any way were not “natural deposits.” The only real difference between that case and this is that there the material had been removed from the lands of A and deposited on the lands of B. Surely, a decision as to whether a deposit is “natural” does not depend on the title to the land on which the deposit is made.
There is no dispute whatever as to the facts, that is, as to what happened. The sole question is as to the meaning of the statute as applied to those facts. This is a pure question of law, and requires no deference to the Tax Court as a fact-finder, or to its “expertise,” whatever that may mean. I agree that the cases on which the government relies are factually distinguishable, except the prior Tax Court ease of Pacific Cement & Aggregates, Inc., 1958, 31 T.C. 136. The Tax Court case is no more persuasive than its holding in the present case. None of the other cases stands for the proposition that these deposits are “natural deposits.” In each, the deposit in question was held not to be a natural deposit. The cases leave us, therefore, with the statute which uses these words, and the application of that statute to what was done here.
These cases do stand for two propositions, both stated in this court’s decision in Consolidated, supra, that strengthen my view that the deposits here in question are not “natural deposits.” The first is that the depletion deduction is a matter of legislative grace, and the taxpayer must bring himself clearly within the statute. Here, it is by no means clear to me that the taxpayers have done so. The second is that a deposit is not a “natural deposit” if it is made by man and not by nature. That is the situation here. Man has dug up a natural deposit —one made by nature — removed and kept a valuable part of it, and deposited the rest of it, in a different form and in a slightly different location. That is a deposit made by man.
2. Section 613(c) (3) would not be applicable at all if the Tax Court’s determination that the deposits here in question are “natural deposits” were correct. It applies only to the extraction by mine owners or operators of ores or minerals “from the waste or residue of prior mining.” As we indicated in the Consolidated case, supra, such waste or residue, because it is a deposit made by man and not by nature, is not a natural deposit. Section 613(c) (3) gives to those who extract ores or minerals from such waste or residue of prior mining the right to a depletion deduction if they are mine owners or operators. This, however, does not aid the taxpayers here. The second sen*214tence of subparagraph (3) of the section expressly states that the subparagraph does not apply to any such extraction of the mineral or ore by a purchaser of such waste or residue or of the rights to extract ore or minerals therefrom.
I am sure that it will not be claimed that the placer mining by dredge which previously occurred on the property and which is so fully and accurately described in the majority opinion, was not “prior mining.” Its purpose was to extract free gold from the soil and it was just as much mining as the digging out of coal, or clay, or gravel, or mollusk shells, or peat, or pumice, or sand, or shale, or stone, the extraction of each of which, as section 613(b) indicates, is considered mining, even though they are “free” in the same sense in which the gold obtained by placer mining is “free.” How, then, can it be fairly said that the material here involved is not the waste or residue of prior mining? It is what was left over after the land was worked by a gold dredge, which is a form of mining, and after all the gold which was formerly mixed with it was removed.
Consideration of the obvious purpose of section 613(c) (3) seems to me to strengthen my view. As I understand it, it was enacted for the benefit of a mine owner or operator whose method of extracting the desired minei-al at the time of the original mining left in the tailings, i. e., the waste or residue, valuable minerals, and to assure that if thereafter, using more effective means, he reworked that waste or residue, he would get his depletion allowance on the additional minerals that he recovered. It is in effect an adoption in the statute of the rule laid down by us in Commissioner of Internal Revenue v. Kennedy Mining and Milling Co., 9 Cir., 1942, 125 F.2d 399. The second sentence of section 613(c) (3) makes it clear that if miner A creates the waste or residue and then miner B comes along and buys either the waste or residue or the right to work it, miner B is not to get a depletion allowance. I think that the operators here are exactly in the position of miner B. They are purchasers of waste or residue of prior mining, or of the right to work it, and Congress did not intend them to have a depletion allowance.
I would reverse.