The opinion
OPINION.
SteRnhagen:
Notwithstanding the briefs filed by both parties discussing theories which might in a proper case require careful consideration, the facts which have been stipulated leave nothing for the petitioners to stand upon. Having, in 1921, sold for $22,000 something characterized as a royalty interest in 120 acres, which they purchased before 1921 and which on March 1, 1913, had no mineral value, the cost of which and the terms of conveyance of which are not in evidence, how can we do aught but affirm the Commissioner? There is no warrant for the petitioners to deduct simultaneously from this sale price an assumed amount of future depletion based on discovery value, or to use this alleged discovery value as the basis for determining gain or loss on sale. Discovery *1078 value is an extraordinary basis granted to taxpayers for computing the depletion deduction, and its significance ends in the deduction section of the statute,- however awkwardly this may work out.
The Commissioner is not content with such a result. He now wants the Board to hold that his determinations on the basis of separate returns were improper and that the deficiency against the husband should be increased by attributing to him all the income. This is a serious question. The record, however, lacks facts which are necessary premises to any conclusion in respect of Louisiana community property and we are therefore unable to decide it.
The Commissioner may have judgment for the amount of the deficiency.
Judgment for the Gommissioner.