657 F.2d 841
81-2 USTC  P 9782
ESTATE OF Fred F. LUCAS, deceased, Dorothy C. Lucas,executrix, and Dorothy C. Lucas, and Shawnee CoalCompany, Inc., Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 79-1710.
United States Court of Appeals,Sixth Circuit.
Aug. 28, 1981.

F. Clay Bailey, Dearborn & Ewing, Herman D. Bradley, Nashville, Tenn., for petitioners-appellants.
M. Carr Ferguson, G. E. Andrews, Asst. Attys. Gen., Tax Div., U. S. Dept. of Justice, Lester Stein, Acting Chief Counsel, Internal Revenue Service, David Pincus, Washington, D.C., for respondent-appellee.
Before EDWARDS, Chief Circuit Judge, ENGEL, Circuit Judge and CELEBREZZE, Senior Circuit Judge.

ORDER

1
Petitioners appeal a judgment of the United States Tax Court which is reported at 71 T.C. 838 (1979).  The Tax Court held that the petitioners failed to rebut the presumption of correctness attached to the Commissioner's determination that the 25 cents per ton "step-up" in the sublessee's "royalty payments" to Lucas constituted an indirect dividend to Lucas from Shawnee.  The amount derived therefrom was held to be taxable to Lucas as dividend income not capital gains, and not deductible by Shawnee as part of its cost of goods sold.  The individual petitioners and Shawnee have appealed the Tax Court's decision on this issue.  The Tax Court also decided an issue concerning the accumulated earnings of Shawnee, from which the Commissioner withdrew his appeal.  For the reasons set forth in the opinion of Tax Court Judge Cynthia Halcomb Hall,


2
IT IS ORDERED that the judgment of the Tax Court be and it is hereby affirmed.

