Campbell v. Commissioner

*91 Respondent determined a deficiency in income tax of petitioners for the taxable year 1959 in the amount of $ 16,105.15.

The only issue for decision is whether petitioners are entitled to depletion of $ 19,120.17 on an oil bonus where the lease was granted and released, after the recovery of 15 barrels of oil, within the taxable year.

FINDINGS OF FACT

Some of the facts have been stipulated. The stipulation of facts and exhibits attached thereto are incorporated herein by this reference.

Petitioners are husband and wife and residents of Kermit, *34 Tex. They filed a joint income tax return for the taxable year 1959 with the district director of internal revenue, Dallas, Tex.

In 1959 petitioners owned an undivided one-third interest in the oil, gas, and other minerals in and under section 27, block B-2, Public School Lands, Winkler County, Tex. On January 2, 1959, petitioners granted an oil and gas lease covering section 27, block B-2, Public School Lands, Winkler County, Tex., to the Sinclair Oil and Gas Co. (hereinafter referred to as Sinclair). Petitioners received $ 69,604.16 from Sinclair on January 5, 1959, as a lease bonus for executing the oil and gas lease.

On March 26, 1959, Sinclair commenced drilling an oil well, designated as the Campbell Estate Well No. 1. After drilling through the Devonian Zone, Sinclair plugged the hole back to the Devonian Zone and brought 270 barrels of load oil to the lease for use in acidizing the formation to complete the well as a producer if possible. During the acidizing procedure 15 barrels of new oil were recovered and were swabbed into the test tank and commingled with the load oil. The acidizing process proved ineffective, however, and the well was plugged *92 and abandoned*35 on May 24, 1959, and 262 barrels of the load oil were removed from the lease.

Sinclair filed under oath a Form 2A Application to Plug and Well Record, dated May 23, 1959, and a Form 4 Plugging Record, dated May 25, 1959, with the Railroad Commission of Texas in which the Campbell Estate Well No. 1 was characterized as a dry hole that produced no oil or gas.

On December 1, 1959, Sinclair released the petitioners' oil and gas lease covering section 27, block B-2, Public School Lands, Winkler County, Tex.

Shortly prior to December 24, 1959, the attorney for petitioners telephoned Horace N. Burton, attorney for Sinclair in Midland, Tex., in regard to any recovery of oil or gas from the Campbell Estate Well No. 1. Attention was directed to the royalty provision in paragraph 4 of the lease agreement which provided in part as follows:

4. The royalties to be paid Lessor are: (a) on oil, one-eighth (1/8) of that produced and saved from said land, the same to be delivered free of cost to the credit of Lessor into the nearest available pipeline to which the oil produced from this lease may be delivered. Lessee may from time to time purchase any royalty oil in its possession, paying the market*36 price therefor prevailing for said oil delivered to the nearest available pipeline on the date of purchase; * * * (c) Lessee shall have use of oil, gas and water from said land, except water from Lessor's wells, only for drilling operations hereunder; however, if any oil or gas is produced from any well drilled, whether or not in paying quantities, and whether sold or used on the premises, Lessee agrees to pay Lessor royalty on said oil and/or gas produced on the above basis.

Sinclair subsequently authorized payment to petitioners under the above lease provision and on January 29, 1960, prepared a check to Seth Campbell in the amount of $ 1.84 in full payment of petitioners' proportionate share of the value of 15 barrels of oil recovered from Campbell Estate Well No. 1 at the rate of $ 2.95 per barrel.

In their income tax return for the taxable year 1959, petitioners reported the bonus of $ 69,604.16 which they received for the execution of the lease and claimed depletion thereon of $ 19,120.07. In his statutory notice of deficiency, respondent disallowed the claimed depletion and included that amount in petitioners' income for that year.

OPINION

The issue to be determined is whether*37 under the peculiar facts of this case petitioners are entitled to percentage depletion under sections 611(a)¹ and 613(b)(1) ² of the Internal Revenue Code of 1954, on a *93 bonus received for the execution of an oil and gas lease that was released within the taxable year.

*38 The rule, as established by the Supreme Court in Burnet v. Harmel, 287 U.S. 103 (1932), is that bonus paid in connection with the execution of an oil and gas lease is to be treated as advance royalty and hence as ordinary income subject to depletion. The underlying theory of the depletion allowance is to compensate the owner for the exhaustion of the mineral deposits in the course of production. In Herring v. Commissioner, 293 U.S. 322 (1934), it was held that the depletion allowance was available in the year of receipt of the bonus even though no production occurred or was imminently foreseeable in that year.

Following the decision in Herring, the Commissioner promulgated regulations providing that depletion taken with respect to a bonus must be restored to income where there is termination, abandonment, or expiration of a lease without production. The Commissioner's authority to issue regulations to that effect was upheld by the Supreme Court in Douglas v. Commissioner, 322 U.S. 275 (1944).

The question then arose as to whether a taxpayer would be required to restore bonus*39 depletion to income where only nominal production occurred. In Dolores Crabb, 41 B.T.A. 686 (1940), where taxpayers received $ 36.98 from both a royalty and a reserved oil payment prior to the lease termination, it was held that restoration was not required since there had been actual depletion, though small in amount.

Petitioners, relying on the foregoing cases and section 1.612-3(a)(2), Income Tax Regs., ³ contend that they are entitled to depletion on the bonus received and that they are not required to restore such to income since they realized royalty income from the property prior to the termination of the lease.

*40 While the cases cited by petitioners are relevant in that taken together they show that the depletion allowance is not an irrevocable grant that can stand without some subsequent extraction, they are not controlling in the factual pattern which is before us here. In those cases the leases were in effect at the end of the year in which the bonus was received and, since it was still possible for production to occur *94 during the tenure of the lease, depletion was allowed as advance royalty. When the leases were terminated in subsequent years and no production had occurred, the question arose as to the restoration of the previously allowed depletion to income since the anticipated exhaustion of the oil and gas deposit had not occurred.

In the instant case all of the taxable events took place within the taxable year. The bonus was received, the well was drilled and abandoned as a dry hole, and the lease was released, all in 1959. There has been no previous depletion allowed for tax purposes and there is nothing to restore to income. It is our view, therefore, that the regulation and cases dealing with restoration are not applicable here.

The question, rather, is whether, considering*41 the taxable year as a whole and the facts as they existed at the end of such year, petitioners are entitled to an initial allowance for depletion. It is clear that the bonus cannot be considered advance royalty for future production since there can be no production under the lease which was released due to the determination that the well was a dry hole. Given no prospect for actual depletion, the reason for allowing a deduction for bonus depletion has disappeared.

Petitioners contend, however, that there was production, that they received income in the amount of one-eighth of the value of 15 barrels of oil which were recovered before the well was abandoned, and that under the rule in Dolores Crabb, supra, this nominal amount of "production" entitles them to depletion on the bonus.

While the correctness of the Crabb decision may be open to question, we think petitioners' reliance on it here is misplaced because it involved restoration of previously deducted depletion and its facts are clearly distinguishable. In Crabb there was actual production under commercial conditions. Although there was only nominal production of oil, from which*42 the taxpayers received royalty, a potentially profitable gas well was obtained. The completed well was not a dry hole; it was abandoned because the unskillful method by which it was completed made further oil operations unprofitable.

On the other hand, the well on petitioners' lease was abandoned as a dry hole. During the acidizing process, the last attempt to complete the well as a producer, 15 barrels of new oil were swabbed into the test tank and commingled with the load oil. After the well was plugged and abandoned, Sinclair removed 262 barrels of the 270 barrels of load oil that had been hauled to the lease. It is logical to assume, therefore, that the 15 barrels of new oil, so contaminated with mud as to be unsalable, were either lost or left in the well hole. See Rogers v. Osborn, 152 Tex. 540, 261 S.W. 2d 311 (1953), where the Supreme Court of Texas said: "The word 'production' means marketable oil *95 and gas." Nevertheless, Sinclair agreed to pay petitioners $ 1.84 for their share of the value of 15 barrels. Indeed, it is doubtful that petitioners were entitled to receive anything under the lease since the oil *43 that was recovered and lost was neither sold nor used on the premises in the drilling operations as required by the lease provision under which petitioners claimed royalty.

Be that as it may, we find that there has been no production of oil in the ordinary sense ⁴ and no depletion which entitles petitioners to any deduction. To allow petitioners the deduction they claim would be to sever depletion from exhaustion and to defeat the purpose for which the depletion statutes were enacted. Consequently, we hold that petitioners are not entitled to any deduction for depletion.

Decision will be entered under Rule 50.

Raum, J., concurring: Although I agree with the result reached in this case, I would *44 not make it turn upon the fortuitous circumstance that all the events took place within the same tax year, and thereby apply a different standard for the allowance of a depletion deduction in the first instance than would be employed where the events straddled 2 tax years and where the amount of the deduction initially allowed is restored to income in the later year. The same result should follow regardless of whether the well was abandoned as a dry hole and the lease terminated in the year the bonus was received, and regardless of whether there was no production at all or merely nominal production. It is inconceivable to me that Congress could have intended to allow a depletion deduction in such circumstances without an offsetting adjustment upon termination of the lease, whenever that might occur. To the extent that Dolores Crabb, 41 B.T.A. 686, ¹ is to the contrary, I think it is wrong and should not be followed.

*45