The court holds, and plaintiff expressly admits in its briefs, that prior to the 1952 contract plaintiff had no depletable interest in the natural gas produced by and purchased from Shamrock. At the oral argument, after questioning from the bench, plaintiff ultimately withdrew from this concession, but its original position was clearly right. Under the 1935 agreement (as supplemented), plaintiff’s predecessor had no “economic interest” in the gas in place but only the “economic advantage” possessed by a purchaser of the gas who has obtained favorable terms from the seller. Helvering v. Bankline Oil Co., 303 U.S. 362, 58 S.Ct. 616, 82 L.Ed. 897 (1938), authoritatively ruled that a taxpayer which purchased gas from the producer, and then processed it (by removing the heavier hydrocarbons), was not entitled to depletion. For the period before 1953, this holding blankets plaintiff a fortiori; plaintiff was further removed than the purchaser in Bankline from the gas in place since it purchased the gas from Shamrock after the latter had extracted the gas and removed the heavier hydrocarbons. The fact that in this case the agreement was for the life of the seller’s resources in Moore County does not distinguish Bankline; there, one type of contract called for the purchase of all natural gas produced at a given well (id., 303 U.S. at 365, 58 S.Ct. 616, 82 L.Ed. 897). See, also, Scofield v. La Gloria Oil & Gas Co., 268 F.2d 699 (C.A.5, 1959).
I can discern no transformation, via the 1952 contract, from a mere economic advantage to an economic interest in the gas in place. That new contract did not purport to grant plaintiff any property interest — e. g., leasehold or fee — either in the land from which Shamrock drew its gas or in the gas itself.7 No other change in status, as between the parties, *326is spelled out in the phrasing of the agreement. Rather, the paragraphs of the preamble (together with the circumstances surrounding the new pact) indicate that the parties simply desired to rearrange the terms of purchase and sale for their mutual advantage. Plaintiff wished to shut down its carbon black plant and to resell all of the gas purchased from Shamrock; the latter wished to sell the gas more profitably to another company; both parties “concluded that it would be more economical and convenient to arrange for the resale of the aforesaid volumes to be made by Shamrock in its own name and on its responsibility as between the seller and purchaser of such gas.” 8 The resulting agreement merely transferred from plaintiff to Shamrock, its vendor, the right to sell for it the part of the residue gas which it was required under the old contract to purchase and which it could resell; plaintiff’s compensation was to be a share of Shamrock’s new (and higher) selling price. The transaction, though more complex, remained at bottom one of sale and purchase. Plaintiff gained no property interest of any kind in the land or minerals.
Aside from Commissioner v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956), no Supreme Court decision has allowed depletion to a taxpayer who did not have either a fee or leasehold interest in the oil-producing property itself. Taxpayer equates itself with the upland owners in Southwest Exploration whose land was essential to drilling operations and whose contribution of that essential upland “was an investment in the oil in place sufficient to establish their economic interest” (id. 350 U.S. at 316, 76 S.Ct. at 399, 100 L.Ed. 347). The investment here, it is argued, was the former contractual right to obtain residue gas from Shamrock; that contribution, it is also said, is essential to Shamrock’s producing activities. The opinion in Southwest Exploration, however, cautions that the Supreme Court was not taking a drastic step away from the prior doctrine (id. 350 U.S. at 316-317, 76 S.Ct. at 399-400, 100 L.Ed. 347). In my view, the theory of that decision *327cannot properly be applied to plaintiff’s case.
The upland in Southwest Exploration was physically essential (under California law) “to the drilling for and extraction of oil” (350 U.S. at 317, 76 S.Ct. at 400, 100 L.Ed. 347); but no interest of plaintiff’s, contractual or proprietary, was essential to the physical process of extraction and production of gas by Shamrock. That company could bring up and process the gas without trenching on any of taxpayer’s rights and without its leave. Taxpayer’s concern did not begin with the raw gas as it came from the well. Nor did that concern even commence with the manufacture of residue gas. Just as in the pre-1953 period, taxpayer’s concern only began with the sale by Shamrock of the residue gas. Prior to that stage, plaintiff had no connection with the mineral. Under the express provisions of the 1952 agreement, Shamrock could use the gas, without accounting to plaintiff in any way, for specified ends of its own- — including use for fuel for compression purposes, for processing and production purposes, and for manufacturing steam. Not until the moment of sale did any obligation to plaintiff arise or plaintiff have any concern with the gas.9 This was not an interest in the gas in place.
The court, in holding otherwise, stresses the fact that there was no way for either party to receive any funds unless Shamrock removed and used or sold the commodity itself. But the test of a depletable interest is not the mere participation of the taxpayer in the realization of gain from the mineral. The regulations provide (Treas.Reg. 118, § 39.23 (m) — 1(b)) that “an agreement between the owner of an economic interest [i. e., Shamrock] and another entitling the latter to purchase the product upon production or to share in the net income derived from the interest of such owner does not convey a depletable economic interest.” The Bankline decision, supra, similarly held against a depletable interest where the contractor had the right to purchase all the gas from the well. See, also, Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959); Scofield v. La Gloria Oil & Gas Co., supra. In those situations it was just as true as here that neither party — landowner or contractor —could receive any funds unless the owner removed and sold the gas. The same was true under plaintiff’s pre-1952 agreement. As in that instance, this factor is insufficient to give plaintiff an economic interest in the gas in place.10
I am concerned, too, that the rearrangement of plaintiff’s contract with Shamrock should be considered the equivalent of a capital investment, in 1952, in the mineral. If such an investment is deemed to have been made here, it would appear relatively easy for a contractor with a mere “economic advantage” to obtain a depletable “economic interest” by a reshuffling of the contractual terms— and without the grant of a recognizable property interest in the land or mineral. *328The Supreme Court seems to have had a more conventional and substantial type of “investment” in mind. See Parsons v. Smith, supra; Commissioner v. Southwest Exploration Co., supra.
For these reasons, I would grant judgment for the defendant.
. The 1952 agreement contains no provision declaring it a covenant running with the land, but merely the ordinary clause stating that the contract shall be binding and inure to the parties and their successors and assigns. In contrast, the earlier agreement contained, in addition to the *326normal clause relating to assignment, another clause specifically agreeing “that the provisions of this agreement * * :i; shall be deemed to be covenants running with the respective lands, leases,” etc., and also covenanting that the “parties * * * wiE not dispose of any of same in bulk, or in such material part as to disable them from performing their obligations hereunder without causing the party to whom such property shaE be transferred, together with its successors and assigns, to assume and be bound by the terms hereof.”
. The preamble to the 1952 contract discloses (in its fourth paragraph) that plaintiff desires to shut down its carbon black plant and “desires to effect a resale of the volumes of gas it is authorized to reseE under the terms and provisions of the aforesaid contracts [i. e., the pre1952 contracts].” (Emphasis added). In the fifth paragraph of the preamble, it is pointed out that any purchaser of such residue gas would have to receive it from Shamrock and would likewise have to deal with Shamrock on various matters (e. g., pressure, deliveries, etc.); the preamble then goes on to say that “the parties hereto, having considered such matters, have concluded that it would be more economical and convenient to arrange for the resale of the aforesaid volumes to be made by Shamrock in its own name and on its responsibEity as between the seEer and the purchaser of such gas and that an accounting between the parties hereto with respect to such resale volumes be made on a basis mutuaEy satisfactory in lieu of the accounting between the parties required under the terms of the aforesaid contracts in the event a resale of such volumes to another purchaser should be aeeompEslied by Columbian.” (Emphasis added.) The sixth paragraph of the preamble states that Shamrock “is wiEing to undertake to accompEsh a resale of the volumes of residue gas which Columbian is authorized to resell under the provisions of the aforesaid contracts in Eeu of making deEvery thereof to Columbian, and is willing to make certain payments to Columbian with respect to the volumes of residue gas remaining from gas produced from its sour gas reserves to the extent of the volumes which Columbian would, except for this contract, be authorized to sell to others.” (Emphasis added.)
. The contract provided:
“4. There shall be no restriction nor limitation on Shamrock’s right to remove liquid or liquefiable hydrocarbons or hydrogen sulphide from the gas produced from said reserves and there shall be no obligation, express or implied, on Shamrock’s part to make payments to Columbian [plaintiff] on the proportionate part of said residue gas above specified, except as, if and when such residue gas is sold or used by Shamrock for purposes other than specified in subparagraphs (a), (b), (c) and (d) of Section 3 above; provided that if Shamrock should cease to process through its plant or plants the gas produced from its sour gas reserves, or any part thereof, and shall make sale thereof at the well or wells where produced, then such payments shall be applicable to the proportionate part of the raw gas volumes that may be sold by Shamrock.”
. In Anderson v. Helvering, 310 U.S. 404, 409, 60 S.Ct. 952, 84 L.Ed. 1277 (1940), the Court said:
“A share in the net profits derived from development and operation * * * does not entitle the holder of such interest to a depletion allowance even though continued production is essential to the realization of such profits.”