DocketNumber： Docket No. 7829.
Citation Numbers： 10 B.T.A. 651, 1928 BTA LEXIS 4062
Judges： Littleton
Filed Date： 2/10/1928
Status： Precedential
Modified Date： 11/21/2020
*4062 1. Royalty income from certain oil and gas leases
2. Profit derived from the sale by petitioner of his interest in oil and gas underlying land owned by him for more than two years prior to the date of sale was a capital gain as defined in section 206 of the aforementioned Revenue Act.
*651 The Commissioner determined a deficiency in income tax of $21,589.89 for the calendar year 1922. Petitioner claims that the Commissioner erred in refusing to tax certain royalties from oil and gas leases as a capital gain under section 206 of the Revenue Act of 1921 and in holding that a profit derived by petitioner from the sale of his interest in oil and gas underlying land owned by him for more than two years prior to the date of sale was not a capital gain as defined by the Act of 1921. The facts are found as stipulated.
FINDINGS OF FACT.
Petitioner is a resident of Camden, Ark. For several years prior to 1922 he was the owner of certain real estate in fee simple*4063 in Ouchita and Calhoun Counties, Ark. The net taxable income of petitioner for 1922 was $96,845.63, of which amount $60,277.88 represents the income received in consideration of the execution of oil and gas leases on property owned by the taxpayer in fee simple and held for a period of more than two years prior to the time of sale, and $7,500 represents the income from the sale of royalty rights for oil and gas on property owned by the petitioner in fee simple for a period of more than two years prior to the time of sale.
*652 During the year 1922, the income from the execution of oil and gas leases was paid to the petitioner by divers parties as consideration for the execution of the said oil and gas leases which transferred to the lessees a seven-eighths interest in any oil or gas discovered on the property owned by the petitioner as covered by the respective leases and the net income from this source aggregates $60,277.88.
During the year 1922, the petitioner also disposed of certain royalty rights which accrued by reason of the ownership of real estate which he had held for a period of more than two years and on which oil had been discovered in 1922. The net income*4064 from this source aggregated $7,600.
On the original return as filed by the petitioner, the tax on the income from the above sources was computed at 12 1/2 per cent, on the theory that such computation was authorized by section 206 of the Revenue Act of 1921 and that the transactions the petitioner engaged in to produce this income constituted the sale of capital assets.
Upon an audit of the return, the Commissioner did not consider the profits arising out of the leasing of the oil and gas rights and from the sale of oil royalties as coming within the provisions of section 206 of the Revenue Act of 1921, but computed the tax under section 210 and 211 of that Act and he arrived at a deficiency in tax of $21,589.89 due by the petitioner, as more particularly appears by reference to the deficiency letter of August 8, 1925.
The oil and gas leases from which the royalty income mentioned was received provided:
* * * That the said lessors for and in consideration of TEN THOUSAND DOLLARS, cash in hand paid, * * * and the covenants and agreements hereinafter contained on the part of the lessee to be paid, kept and performed, have granted, conveyed, demised, leased and let, and by*4065 these presents do grant, convey, demise, lease and let unto said lessee for the sole and only purpose of mining and operating for oil and gas, and laying of pipe lines, and of building tanks, towers, stations and structures thereon to produce, save and take care of said products, and all that certain tract of land * * * in consideration of the premises the said lessee covenants and agrees to deliver to the credit of the lessor, free of costs in tanks or pipe line to which it may connect its wells, the equal one-eighth part of all oil produced and saved from the lease premises.
To pay the lessor market value one-eighth gas for the gas from each well where gas only is found, while the same is being used off the premises, lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling houses on said land during the same time by making his own connection with the well at his own risk and expense.
To pay lessor for gas produced from any oil well used off the premises at the rate of market value 1/8 gas for the time during which such gas shall be used, such payments to be made each three months. If no well be commenced on said land*4066 on or before the day of 19 8 this lease shall terminate as to both parties, unless the lessee, on or before that date, shall pat or tender to the lessor, or to the lessor's credit * * * or its successors, * * * the sum of One Dollar per acre per year, which shall operate as a *653 rental and cover the privilege of deferring the commencement of a well for one year from said date.
* * *
As a consideration in addition to the one above named, the lessors are to receive the sum of ten thousand dollars from 7/16 of the first oil saved and produced from the above described lands to be paid by lessee, successors or assigns.
The warranty deed executed by the petitioner upon the sale by him in the taxable year of his interest in oil underlying certain land owned by him was as follows:
That we and his wife, for and in consideration of the sum of $ DOLLARS, to us cash in hand paid by receipt of which is hereby acknowledged, do hereby grant, sell, and convey unto the said and to h heirs and assigns forever, an undivided interest in and to all of the oil, gas and other minerals, in, under and upon the following described lands lying within the County of and State of Arkansas, to-wit: *4067 containing acres, more or less, subject, however, to a certain oil, gas and mineral lease executed * * *. And for said consideration we do hereby grant and convey unto the said and unto heirs and assigns the right to collect and receive under the aforesaid lease such undivided part and interest of all oil royalties and gas rentals due or that may become due under the aforementioned lease.
To HAVE AND TO HOLD the above described property, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said and unto heirs and assigns forever. And we hereby covenant with the said that we will forever warrant and defend the title to the above described lands and the rights herein conveyed against all lawful claims whatever.
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OPINION.
LITTLETON: The decision of the first issue is governed by the decision of the Board in ;
As to the second issue, with reference to the profit of $7,600 derived by the petitioner from the sale of his interest in oil and gas underlying certain land owned by him, the Board is of the opinion that this profit was a capital gain within the meaning of section 206 of the Revenue Act of 1921 and should be taxed at 12 1/2 per cent as claimed by the petitioner,