DocketNumber： Docket No. 13571.
Citation Numbers： 1928 BTA LEXIS 4040, 10 B.T.A. 732
Judges： Teammell, Lansdon, Sternhagen, Green, Mtjkdock, Arttndell
Filed Date： 2/14/1928
Status： Precedential
Modified Date： 11/20/2020
*4040 The owner, now deceased, of the right to receive royalties of an oil and gas lease unconditionally assigned certain undivided interests therein to his children. The assignees received all production from the interests so assigned.
*732 The respondent has asserted deficiencies in income taxes for the years 1920, 1921, and 1922, in the respective amounts of $34,882.69, $225.01, and $457.04. The petitioners allege that the respondent *733 erroneously increased the decedent's income for each of the years in question by the addition of certain amounts which were in fact the income of other persons to whom the decedent had assigned three-fourths of his interest in certain royalties resulting from the production of oil and gas from a tract of land owned by himself and leased to a producing company. Just prior to the hearing of this proceeding the petitioner died and at the hearing permission was granted to substitute the executors of his estate as petitioners of record.
*4041 FINDIGNS OF FACT.
During the taxable years Peder Paulson was a resident of the State of Kansas, with his office and place of business at El Dorado, and was the owner in fee of a certain tract of land legally described as section 2, township 26 south, range 4, east of the sixth principal meridian in the State of Kansas. On the 22d day of January, 1915, he leased such land to the Wichita Natural Gas Co. of Bartlesville, Okla., on the terms and conditions usual in such transactions in the mid-continent oil fields. The specific terms of this lease other than the reservation of one-eighth of the production and other considerations as rentals are not material in this proceeding.
The family of Peder Paulson consisted of his wife, five children and one stepdaughter. On March 7, 1918, Paulson and his wife executed six "Assignments of Royalty," one to each of the six sons and daughters, including the stepdaughter. Except as to the names of the assignees the six instruments were identical, and are as follows:
THIS AGREEMENT, made and entered into this 7th day of March, A.D. 1918, by and between PEDER PAULSON and MARTHA M. PAULSON, his wife, of Butler County, Kansas Parties of the*4042 first part, assignors herein, and ANNA MAY LIERLE of Bulter County, Kansas, party of the second part, assignee herein.
WITNESSETH, That whereas, heretofore on the 22d day of January, 1915, a certain oil and gas lease was made and entered into by and between said parties of the first part as lessors and WICHITA NATURAL GAS COMPANY, as lessee wherein said lessors leased to said lessee for oil and gas mining purposes for a term of five years from said date, and as much longer as oil or gas or either of them is produced thereon in paying quantities, the following described real estate in Butler County, Kansas, to-wit: All of Section Two, Township Twenty-six South, of Range Four East, said lease being recorded in the office of the Register of Deeds of Bulter County, Kansas, in Book Misc "L" at Page 143, and
WHEREAS, said oil and gas lease provides (inter alia) that the lessee therein named shall deliver to said lessors, heirs or assigns, free of cost in the pipe lines to which it may connect its wells, the equal one-eighth part of all oil produced and saved from the leased premises; and shall pay said lessors $200.00 each year in advance for the gas from each well where gas only is*4043 found; and shall pay said lessors the sum of Fifty Dollars per year for the gas produced from any oil well and used off the premises, and
WHEREAS, the lessee in said lease or its successors or assigns, has entered upon said premises above described and commenced the development of same *734 under said lease, and is now producing and marketing oil therefrom in paying quantities;
NOW THEREFORE, be it remembered, that we, the said PEDER PAULSON and MARTHA M. PAULSON, in consideration of the sum of One Dollar cash in hand paid and other good and valuable considerations, receipt whereof is hereby acknowledged, do hereby sell, assign, transfer and set over unto the said ANNA MAY LIERLE, party of the second part, the undivided one-eighth interest and part in and to all the royalties, both of oil and gas, being the undivided one-sixty-fourth part of all oil so produced from said premises, and the undivided one-eighth (1/8) interest and part in and to said considerations provided for in said lease to be paid by said lessee for gas found on said premises, either from a well where gas only is found, or for gas produced from any oil well and used off the premises, which shall hereafter*4044 accrue, be produced or become payable under the terms of the oil and gas lease above mentioned and described during the natural lifetime of said party of the second part, and do hereby assign, transfer, sell and set over such undivided one-eighth interest and part in and to such royalties, both of oil and gas, which shall or may accrue, be produced or become payable under the terms of the oil and gas lease above mentioned and described after the death of the said party of the second part herein unto the children of the said party of the second part her surviving, in equal shares,
TO HAVE AND TO HOLD the same unto said child or children, their heirs and assigns forever.
PROVIDED, that if any child or children, of the said party of the second part herein shall die prior to the death of said party of the second part, leaving surviving him, her or them a child or children, then such child or children of such deceased child or children, shall take in equal shares the share or shares, of the rights, interests, and properties herein assigned that their parent or parents, respectively, would take if lying, and
PROVIDED FURTHER, that if said party of the second part shall die without*4045 leaving surviving her a child or children, or child or children of deceased child or children, then and in that event, all rights, properties and interests herein assigned or transferred shall immediately upon the death of said party of the second part, revent to and become the property of said PEDER PAULSON, his heirs and assigns.
TO HAVE AND TO HOLD the same unto said PEDER PAULSON, his heirs and assigns forever, in exactly the same manner and to the same extent as if this assignment had never been executed.
IT IS FURTHER UNDERSTOOD AND AGREED by and between the parties hereto that in order to facilitate the marketing of said royalty interest in and to such oil, and the collection of any other payments falling due under said lease, said PEDER PAULSON, or any other person by him designated and appointed, shall collect all monies arising from the sale of such royalty oil, and all other payments accruing under such lease, and shall have the power and authority to receipt therefor, and to sign any and all division orders and other instruments necessary to be executed in connection therewith, and that any such act of said PEDER PAULSON or the person so by him appointed shall be*4046 binding upon the party of the second part herein (or the successors in interest of the party of the second part after the death of the party of the second part) and that said PEDER PAULSON, or any person so by him appointed, shall within a reasonable time after receiving any such payments pay and deliver to the party of the second part herein (or in the event of the death of the party of the second part the persons or person entitled thereto) her proper share and portion of the same.
THE COVENANTS HEREOF shall extend to and be binding upon the heirs, executors, administrators, successors and assigns of the parties hereto.
*735 IN WITNESS WHEREOF, said parties of the first part, assignors herein, have hereunto set their hands the day and year first above written.
Following the assignment of oil and gas royalties as set forth above, Paulson and his wife as individuals, Paulson as trustee, and the then operating owner of the lease executed the Kansas Form of division order for the distribution of the products of the lease, providing that one thirty-second, three-thirty-seconds, and seven-eighths of such products should be accounted for and delivered, respectively, to Peder*4047 Paulson, Peder Paulson, trustee, and the Empire Gas & Fuel Co.
Acting in conformity with the "assignments of royalty," Peder Paulson received the proceeds from the sale of four thirty-seconds of the oil produced from the property and deposited three thirty-seconds of such proceeds to a bank account in the name of Peder Paulson, trustee. From time to time he purchased bonds for investment and paid for the same with checks on his account as trustee and divided such purchases equally among the six assignees. Paulson personally received one thirty-second part and each of the six assignees received one sixty-fourth part of the proceeds of the oil and gas lease involved in this controversy, except that a small amount due to such assignees and received for them by Paulson was lost by the failure of the bank in which the trustee account was kept. Paulson never received, used, or deposited for his own account or for his own purposes any part of the royalty transferred to his children by the several assignments.
OPINION.
LANSDON: The pleadings and proof advanced at the hearing establish all the facts pertinent to his controversy. The only question for us to determine is whether*4048 the amounts received by the assignees were income directly to them or whether it was in the first instance income to Paulson and by him given to his children after the receipt thereof. Did the "Assignments of Royalty" divest Paulson of all ownership in the conveyed property and the right to receive income therefrom or were they merely agreements providing for the passing on of certain parts of the assignor's income to the assignees as and when received?
It is clear that Paulson was the owner of a right to receive royalty and rentals as set forth in the lease. That right was property and whether it was in fact an interest in realty or personalty is not material, since it was of such a nature that it was transferred by written instruments which were made of record in the books of the Register of Deeds of Butler County, Kansas. By the execution of the "Assignment of Royalty" he transferred to each of the assignees all his rights, title and interest in one-eighth of such property. No procedure *736 in connection with the production of oil, gas or other mineral from leased lands is more usual or frequent than the subdivision and transfer by sale or otherwise of royalty interests. *4049 Even if such transfers were gifts, they were absolute and irrevocable, since the execution, delivery and recording of the evidence thereof was a full compliance with the rule that a gift is complete when delivery is made. ; ; .
The fact that Paulson, as trustee, received the income flowing from the transferred property in no way casts any doubt on the assumption that the effect of the delivery of the instruments was to completely divest Paulson of any property right in the subject matter transferred. . It is our opinion that after March 7, 1918, each of the assignees owned an interest in the property in question and was entitled to receive all income resulting from its exploitation for oil and gas. That ownership and the rights flowing therefrom were enforceable against the assignor and the operating lessees, if questioned in the courts of Kansas. *4050 ; . The provision in the "Assignment of Royalty" that the assigness were to receive their several portions of the production from the lease only as produced, to our minds relates to the time when demands might be made for payments and not at all to rights in the property or to receive income therefrom.
Reviewed by the Board.
STERNHAGEN, TRAMMELL, GREEN, ARUNDELL, and MURDOCK dissent.