# Herring v. Commissioner

> Court of Appeals for the Fifth Circuit · April 24, 1934 · 70 F.2d 785

URL: https://www.frixlaw.com/law-library/cases/6859121

## Case

- **Full name:** HERRING v. COMMISSIONER OF INTERNAL REVENUE
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 24, 1934
- **Citations:** 70 F.2d 785; 14 A.F.T.R. (P-H) 189; 1934 U.S. Tax Cas. (CCH) 9257; 14 A.F.T.R. (RIA) 189; 1934 U.S. App. LEXIS 4312
- **Precedential status:** Published
- **Opinion:** Dissent by Sibley
- **Judges:** Sibley, Walker
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6859121

## Opinion text

SIBLEY, Circuit Judge
(dissenting).
The question is whether a percentage depletion is allowable on bonuses received in 1926 for oil and gas leases which are to endure so long as oil or gas is produced when no well was drilled and no oil produced under them during that year, although the oil and gas were present and were produced later. The Board of Tax Appeals denied the allowance because there was no well, and this court denies it because no oil was taken out. One of the pertinent provisions of the Revenue Act of 1926, “In computing net income there shall be allowed as deductions: * * * In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case,” occurred in previous acts. The other provision: “In the ease of oil and gas wells the allowance for depletion shall be 27% per centum of the gross income from the property during the taxable year,” is new. Great difficulty was found under the former provision in estimating the content of an oil and gas reserve under the ground and in arriving at what proportion of it was represented by the operations of a particular taxable year, and also in fixing the value of the reserve under the rules relating to discovery value. To avoid these difficulties Congress in the new provision ignored both the size and the value of the reserve, assumed that the value of any production of oil or gas would on the average be 27% per cent, original capital investment not to be taxed, and the remaining 62% per cent, would be taxable income, and provided for its taxation in the year it was received. It is evident that the 27% per cent, deduction which the statute not only permits but commands must be made in the year that the income which measures it is received and taxed, that it cannot be taken any subsequent year, and that it is entirely independent of actual depletion, being so named because it looks forward or backward to the exhaustion represented by the income received. The purpose and command of the provision is defeated by the decision in this case. The oil and gas were present to be produced, as was, of course, supposed when nearly a half-million dollars were paid in advance for them as bonuses, and as was proven when the wells were drilled. That the lessees by their own choice not to drill the first year should control the taxability of the lessor’s bonuses, or that the depletion allowance on the entire bonuses should depend on the production in the taxable year of a few gallons of oil or a few feet of gas seems to me both unreasonable under the general provision for depletion and in contradiction of the special provision for the percentage deduction.
It is true that depletion, like depreciation because of wear and tear and obsolescence, is based on the actual gradual loss of capital. The allowance for wear and tear and obsolescence is, however, always estimated and distributed over the useful life of the property considered, and does not depend on a demonstration of what actually happened to it in the particular taxable year. The allowance for them is a general offset against all income for the taxable year rather than a deduction from some particular item of income, because wear and tear and obsolescence, although a loss of capital, do not directly produce any particular income. Depletion also may sometimes be a mere loss, as when oil or gas runs to waste or standing timber dies and rots. But ordinarily depletion refers to a commercial use of part of a reserved store, as where ore or gas or oil is extracted for sale, or timber or ore or oil is manufactured into lumber or metal or gasoline and sold. In such cases the capital represented by the depletion is used directly to produce income and is converted into it. According to Eisner v. McComber, 252 U. S. 189 , 40 S. Ct. 189 , 64 L. Ed. 521 , 9 A. L. R. 1570, only gain is taxable income under the Sixteenth Amendment where a conversion of property is involved. Congress is therefore merely staying on safe constitutional ground in providing for this percentage depletion against income received from oil and gas. If not a constitutional necessity, it is certainly more reasonable, where income is produced by a commercial depletion, to deduct the depletion from the particular income produced by it as an element of cost rather than to make it an offset against general income in some other year. If for example the owner of timber leases it to a sawmiller to be *789 exhausted over a term of years and is paid as the timber is cut, the actual depletion of his timber by cutting corresponds with his receipt of income and no problem is presented. But if the sawmiller should pay for all after the end of the term, it would be unreasonable to allow the owner depletion in the years the timber was cut when he had no income and no tax to pay, and to tax his whole income without any depletion at the end. So if the whole timber should be paid for in advance. Again, if the timber owner is cutting and selling his own timber, he should be allowed to deduct the value of his timber from the income as received, no matter when the trees were cut or delivered. Although oil and gas are underground and timber is not, both are by the statute depletable and the same principle applies. The bonus on an oil and gas lease is so far as authority can make it merely royalties paid in advance, and both bonus and royalties are the consideration for the oil expected to be recovered by the lessee. Both are equally income to the lessor from his land, and both are alike subject to be reduced by allowance for depletion. Burnet v. Harmel, 287 U. S. 103 , 53 S. Ct. 74 , 77 L. Ed. 199; Murphy Oil Co. v. Burnet, 287 U. S. 299 , 53 S. Ct. 161 , 77 L. Ed. 318 ; Bankers’ Coal Co. v. Burnet, 287 U. S. 309 , 53 S. Ct. 150 , 77 L. Ed. 325 ; Palmer v. Bender, 287 U. S. 551 , 53 S. Ct. 225 , 77 L. Ed. 489 . The income tax statutes have studiously endeavored to tax net income only, and to make just allowances for expenses and for a return of capital lost in producing it. The statute in question nowhere says that the depletion allowance commanded is to be taken when the oil is extracted, but the general provision has always been ■ that a reasonable allowance shall be made according to the peculiar conditions of each case. Construing it as to a bonus, it is said in Murphy Oil Co. v. Burnet, supra, at page 307 of 287 U. S., 53 S. Ct. 161, 164: “Here an anticipated depletion of capital is to be returned from bonus and future royalties, to the extent that the applicable statutes allow, and the problem is to allocate such anticipated depletion to a payment made in advance of its occurrence. This allocation is permitted by the statute.” This language is quite at variance with that of the court below quoted in the majority opinion. When this provision was first enacted in 1918, Regulation 45, Art. 215 (d), provided that on the expiration or abandonment of a lease without the removal of any or all of the mineral contemplated by the lease, there must be a return to capital account of so much of the bonus deducted from the recoverable capital as exceeds actual depletion, and that amount must be treated as income the year the lease was ended. This shows that it was understood that the bonus payment was considered depletable in advance of actual depletion, and that if the contemplated depletion does not occur the correction is to be made at the end of the lease. The same regulation has been continued ever since, as Congress has re-enacted the same depletion provision, and it is referred to and its operation approved in Murphy Oil Co. v. Burnet, supra, at page 304, and again at page 306 of 287 U. S., 53 S. Ct. 161, 162, 163. The statutory words: “In the ease of oil and gas wells” are directly connected with “other natural deposits.” Wells as such were not in the mind of Congress as subjects of depletion, but the deposits of oil and gas and other minerals were in mind, and as shown above, depletion of bonuses on leases was regularly allowed although m most cases, no doubt, actual production is not accomplished in the year the lease is made. "When in the act of 1926 Congress again used the expression, “in the ease of oil and gas wells” in connection with the percentage depletion, no narrower meaning is to be attributed to it. United States v. Dakota-Montana Oil Co., 288 U. S. 459 , 53 S. Ct. 435 , 77 L. Ed. 893 . On the contrary, even more plainly the receipt of income and not the existence of a well or of production from it is made the generating cause of the depletion allowance. If the tax officer treats a bonus payment as income, he must deplete it 27% per cent, under the command of the statute.
In Helvering v. Falk, 54 S. Ct. 353, 354 , 78 L. Ed. -, depletion under all the acts through that of 1926 was under consideration and the eases were reviewed with this conclusion: “Whatever may be said concerning the power of Congress to treat the entire proceeds of a mine as income, obviously this statute has not undertaken so to do. The plain purpose, we think, was to tax only that portion of the proceeds remaining after proper allowance for depletion. This allowance represents property consumed, is treated as if capital assets, and no tax is laid upon it. The statute must be so applied in practice as to carry out this purpose.” The judgment in the case at bar defeats the statutory purpose and by denying the allowance which the statute commands taxes that part of the money received which ought to be treated as if capital assets.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6859121. Public record. Not legal advice.