DocketNumber: Docket Nos. 32609, 32610, 40115, 40267, 40659, 41072
Citation Numbers: 24 B.T.A. 216
Judges: Smith
Filed Date: 9/29/1931
Status: Precedential
Modified Date: 10/17/2022
The sole question presented by these proceedings is whether the petitioners are entitled to deduct from their gross in
The parties have stipulated that if, as a matter of law under the stipulated facts, depletion is an allowable deduction from gross income to these petitioners, then the amounts thereof are those shown in a memorandum and schedule of the engineering subsection of the audit review division introduced in evidence as Exhibit B.
The applicable statute is section 214 (a) (9) of the Revenue Act of 1926, which provides:
(a) In computing net income there shall be allowed as deductions:
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(9) 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; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. In the case of leases the deduction allowed by this paragraph shall be equitably apportioned between the lessor and lessee.
The question presented by these proceedings is the same as was before the Board in Kate Fowler Merle-Smith, 11 B. T. A. 254, and Margaret B. Fowler, 11 B. T. A. 265, in which we held that the beneficiaries were not entitled to deductions for depletion on account of the removal of ore from property forming a part of the corpus of the trust. Here, as there, the beneficiaries of the trust were to receive not only the income of the trust, but had an interest in the corpus as well. The decision of the Board in Kate Fowler Merle-Smith, supra, was reversed by the Circuit Court of Appeals for the Second Circuit, 42 Fed. (2d) 837; certiorari denied, 282 U. S. 897. The facts in this case are also substantially the same as obtained in Mary Alphin et al., 21 B. T. A. 1101, where we held, following the decision of the court in Merle-Smith v. Commissioner of Internal Revenue, supra, that the beneficiaries were entitled to depletion deductions. In these proceedings we are also of the opinion that they are entitled to reasonable allowances for depletion in the computation of tax liabilities for the years involved.
Reviewed by the Board.
Judgments will l>e entered under Rule 50.