Riddell

The District Director of Internal Revenue appeals from a judgment of the district court awarding taxpayer $1,073,-612.46 in refund of income taxes previously paid for the taxable years 1951 and 1952. The taxpayer also appeals, as protective procedure, from the court’s refusal to classify its product as chemical grade limestone, entitled to a fifteen per cent rate as a depletion allowance. We shall for convenience refer to the District Director of Internal Revenue as “appellant” or “government” and to California Portland Cement Company as “appellee” or “Company.”

This is one of several “statutory percentage [mining] depletion allowance” appeals involving federal income tax payments, heard by this court within the past several years. 1 All of them have involved to a greater or lesser degree, the issue finally passed upon by the Supreme Court in the Cannelton Sewer Pipe Company case (United States v. Cannelton Sewer Pipe Co., 1960, 364 U.S. 76 , 80 S.Ct. 1581, 1582 , 4 L.Ed.2d 1581 ), plus others peculiarly their own.

Jurisdiction was conferred below by 28 U.S.C. §§ 1331 (a), 1340 and 1346. *347 This court’s jurisdiction on appeal rests upon § 1291 of Title 28 U.S.Code, as…