S/V Drilling Partners v. Commissioner

VASQUEZ, J., dissenting: I agree with the majority’s conclusion that (1) there are 32,410 BOE of natural gas which constitute “qualified fuels” under section 29(c)(1) eligible for the credit — 15,483 BOE solely attributable to the tight formation and 16,927 BOE from Devonian shale and the tight formation; and (2) petitioner is entitled to one credit for the 16,927 BOE of natural gas produced from both Devonian shale and the tight formation. I, however, disagree with the majority’s holding that (1) respondent has conceded that the credit should be indexed under section 29(b)(2) for the 16,927 BOE of natural gas produced from Devonian shale and the tight formation; and (2) pursuant to the concession, petitioner is entitled to index the credit. Accordingly, I respectfully dissent.

Section 29(b)(2) generally provides for an inflation adjustment to the credit. Within that section, the statute further provides that “In the case of gas from a tight formation, the $3 [credit] amount * * * shall not be adjusted [for inflation].” It is a commonplace of statutory construction that a specific provision will not be controlled or nullified by a general one, particularly when the two provisions are interrelated and closely positioned. See HCSC-Laundry v. United States, 450 U.S. 1, 6, 8 (1981). If gas is derived from a tight formation, the statute specifically does not allow for indexing of the credit. The 16,927 BOE of natural gas were produced, in part, from a tight formation; therefore, petitioner is not entitled to index the credit associated with this natural gas.