Warren v. United States

MaddeN, Judge,

delivered the opinion of the court:

The plaintiffs sue for the refund of a part of the income taxes paid by them for the years 1949 through 1952. They paid their taxes for these years on the basis that the income in question was ordinary income. Their claim in these suits is that the income was long-term capital gain, taxable at a lower rate.

In 1938 the Corpus Christi Corporation was organized under Texas law to acquire and develop oil and gas properties in some 8,782 acres of land in three counties in Texas. Of Corpus Christi’s 5,000 shares of stock, The Chicago Corporation owned 1,250 and the other 3,750 were owned by the plaintiffs and other persons.

By May 5,1941, some 18 producing wells had been brought in on about 2,200 acres of the property. The other 6,000 acres of the land had not been tested. A high-pressure recycling plant had been constructed to extract the saleable distillate from the wet gas and reinject the dry gas into the earth to exert pressure on the wells. The necessary financing to continue and expand the development of the property was a problem to the plaintiffs and they sought to dispose of their stock in Corpus Christi. They negotiated with a' number of individuals and corporations, including Chicago, which, as wé have seen, already owned 20 percent of the stock of Corpus Christi. Chicago offered to buy the stock of the other shareholders, if it could get enough of it so that it would hold at least 80 percent of the stock, the minimum amount required under Texas law to enable it to liquidate the corporation, and under section 112(b) (6) of the Internal Revenue Code of 1939 to accomplish the liquidation of a corporate subsidiary tax free. Chicago was to pay the selling shareholders $163.63 per share, plus an additional specified cash amount if the liquidation turned out to be, in fact, tax free. In addition, Chicago agreed to convey to each shareholder who sold his stock to Chicago, an “overriding royalty” in the oil, gas and other products of the Corpus Christi leases. In the gas and oil industry, an “overriding royalty” means a fraction of the working interest which by agreement is relieved of the expense of the development and production.

The sale of the Corpus Christi stock was accomplished and Corpus Christi was liquidated. In general terms the situation was, then, that the land owners who had made the leases to Corpus Christi had a royalty interest in the mineral products produced, presumably a one-eighth royalty interest, Chicago had the “working interest,” presumably seven-eighths, which had formerly belonged to Corpus Christi, less-the “overriding royalty” which Chicago had in the purchase of stock transaction, conveyed to the selling stockholders.

This small overriding royalty owned by the plaintiffs was, under Texas law, a property interest, Rogers National Bank of Jefferson v. Pewitt, 231 S.W. 2d 487, and was recorded in the land records of the appropriate counties. In the agreement between Chicago and the plaintiffs creating the overriding royalty in the plaintiffs, Chicago, as the holder of the working interest in the leases, agreed to pay all the expenses of development, operation and exploration, and to diligently prosecute these activities. The plaintiffs had the right to take their share of the product in kind, or to give “division orders” to Chicago to sell their share of the products for their account and pay the money over to them. During all of the times pertinent in this suit such division orders were in effect.

In the plaintiffs’ tax returns for 1941, the year in which they sold their Corpus Christi stock to Chicago, they reported as long-term capital gain the excess of the cash paid them by Chicago over what their Corpus Christi stock had cost them. They did not include in their capital gain any value for the overriding royalties which they received in the transaction, stating that those interests had no ascertainable market value. The taxing authorities, however, placed a value of $1,035,000 upon those interests of all the minority stockholders, and added proportionate parts of that amount to the capital gains of the plaintiffs. Presumably they paid taxes on these additional amounts of capital gain.

The properties proved highly productive. From July 1, 1941 to the end of 1956 Chicago remitted to the plaintiffs and the other former stockholders $11,548,107.84 as the amount of the proceeds of their overriding royalty share of the products.

For the taxable years 1949 through 1952 here in question, the plaintiffs included, in their returns, their receipts from their royalty interests as ordinary income subject to the statutory 27% percent depletion allowance. So far as appears, they had also treated that income similarly for the years 1941 through 1948. For the years 1949 through 1952 they filed timely claims for refund on the ground that the receipts from their overriding royalties were additional amounts received by them as a part of the price of their sale of their Corpus Christi stock to Chicago in 1941, and should, therefore, be taxed at capital gains rates.

When the plaintiffs sold their Corpus Christi shares to Chicago in 1941 they, as we have seen, received some cash, a promise of some more cash if the purchaser was not required to pay a tax on its profit made out of the liquidation of Corpus Christi, and the “overriding royalty” in the oil and gas. This last item was, as we have seen, a property interest. If it had been a more normal, more tangible kind of property, its value would as a matter of course have been added to the cash received, and the plaintiffs’ gain would have been computed on the combined figure. If, although the property interest received was of an unusual nature, such as an overriding royalty, it had a market value which could be reasonably estimated, the same computation would be made. If such an estimation was made by the taxpayer, and the Government agreed to it, and the capital gain tax was paid on that basis, that would end the capital gain matter for that transaction, subject, presumably, to whatever rights the statutes give to either the taxpayer or the Government to reopen it within prescribed periods.

If the matter was closed in the manner just indicated, the subsequent tax treatment of the newly acquired property would be normal. If the property produced income, such as rent, the rent would be taxed as such. If, as an interest in oil or gas property, it produced oil or gas or the income from the sale of those minerals, the income would be taxed, after the deduction of the statutory depletion allowance.

The plaintiffs say that these normal consequences of the sale of property do not obtain in the instant case because the “property” which the Government says the plaintiffs received in the transaction with Chicago was not, they say, reasonably susceptible of valuation at the time they received it. The fact that the Government valued the overriding royalties of all of the holders of such interests at $1,035,000 in 1941, and the holders received, in the next fifteen years alone, $11,-548,107.84 shows that the estimated value was a rough and inaccurate guess.

The plaintiffs say that whatever money they received, as a consequence of the sale of their Corpus Christi stock, was a part of the sale price, though its receipt was unanticipated and delayed. If, as one item of consideration for the sale of property, the seller took in an empty apartment building in a ghost town, the building having a negligible market value, and shortly thereafter because of the location by the Government of an atomic or other large project in the area, the apartment building became a gold mine of income, the owner could truthfully say that the income was a consequence of his sale of his property and his receipt of the apartment building as a part of the price. But he could hardly say that his income from the apartment building, for all time to come or for any time, was deferred purchase money received from his sale.

The plaintiffs would, we suppose, distinguish the situation just described because, in the plaintiffs’ case, Chicago as the owner of the working interest had agreed to do all of the operating and development and exploration work, and the plaintiffs had nothing to do but cash their royalty checks when, as and in whatever amounts they came in. But this is the situation of any owner of a royalty interest, and of any person who has income from bonds, notes, or stocks which pay dividends.

As to the controverted question of whether the plaintiffs’ overriding royalties were, in 1941, reasonably susceptible of valuation, we have concluded that the question need not be answered. If, at the time the plaintiffs’ capital gains were being computed for the 1941 transaction, the plaintiffs had sought a refund because the Government’s valuation was too high, or the Government had assessed a deficiency because the plaintiffs’ return showed too low a valuation, a court would have had to determine a valuation, or to decide that it was not possible to determine one. See Burnet v. Logon, 283 U.S. 404; Philadelphia Park Amusement Co. v. United States, 130 C. Cls. 166. If it did the latter, the further tax consequences would depend upon the nature of the interest found unsusceptible of valuation. If it was income producing property, such as the apartment house referred to above, the Government would get its revenue by taxing the income as received, and by taxing the capital gain when the building was next sold, since it would have a low cost basis. If the interest found unsusceptible of valuation was not a property interest, and therefore not capable of producing ordinary income which could be taxed as such, any further receipts from such an interest would be additional payments of purchase price, further capital gains from the sale, and taxable as such. If one, for example, promised to pay $10,000 for a house, and to pay $5,000 more if he made a profit of $50,000 in a certain independent speculative venture in which he was engaged, the $5,000, if received;, would be an addition to the sale price of the house, and taxable to the seller as capital gain. This was the situation in Burnet v. Logan, supra, and in Haynes v. United States, 100 C. Cls. 43, and Tuttle v. United States, 122 C. Cls. 1.

In the three cases just cited, the additional payments to be received were contingent upon the production of minerals' from specified properties. The transactions did not, however, give to the contingent payee any property interest in the land or the minerals. None of the income from those properties was taxable to him as his income. He, of course,, had a very lively “interest” in the fact that minerals should be produced from those properties, just as the man in the illustration above had an “interest” in the success of his purchaser’s independent speculative venture.

It is apparent from what we have said that our view is that income received by an owner of a property interest is taxable to him as such, and that the fact that he received the property interest as a part of the sale price of property is irrelevant. The fact that the income is in large amounts only proves that he made a profitable deal when he accepted the property interest which later produced the income. The •hope and belief that, by an exchange of money for property, or property for other property, income will be increased because the property received will produce more income than the money or property parted with, is the motive for most commercial transactions. To select one type of such transactions, as the plaintiffs would have us do, for special treatment would introduce confusion into an already difficult field of taxation.

The plaintiffs’ petitions will be dismissed.

It is so ordered.

Maris, Circuit Judge {Bet.), sitting by designation, and Whitaker, Judge, concur.