Hawkeye Petroleum Corp. v. Commissioner

OPINION.

Opper, Judge:

Although the taxes in controversy relate to 1943 and the claimed carry-back of a loss to that year is from 1945, the real question concerns petitioner’s conduct in 1944. The parties are fundamentally at, odds as to whether what petitioner did in that year constituted an irrevocable election not to expense its intangible drilling and development costs.

1944 was the first year after the end of the effective date of adoption of Regulations 111, section 29.23 (m)-16 (&), granting a new election to oil producers,¹ in which petitioner had any development costs. The regulation in question, after requiring a “clear statement” of the operator’s choice in its first tax return, continues:

* * * The absence of a clear indication in such return of an election to deduct as expenses intangible drilling and development costs shall be deemed to be an election to recover such costs through depletion * * * and through depreciation * * *. This election is binding for all subsequent years.

Respondent insists, and we agree, that there was no such “clear indication” in the 1944 return as the regulation envisages. But this is not to say that the election to capitalize can be spelled out under our interpretation of the regulation.

The confusion is due to the fortuitous result that a dry hole was the outcome of the only operations undertaken in 1944. It is hence impossible to conclude with any seriousness that petitioner’s treatment could have the effect described by the regulation of an election to recover “such costs through depletion and through depreciation.” The expenses were written off at once and left the intention to resort to depletion as much in the realm of speculation as though no ex-pensable cost had been incurred in that year.

Looking at the regulation as a whole, we are led to conclude that, while it clearly envisages an election between expensing development costs and leaving them open for future years as a basis for recovery by means of depletion and depreciation, nowhere is there provision for an election between expensing and deduction as a loss. Under the peculiar facts, that was the only choice open to petitioner in 1944. If the election to expense is not clearly indicated, an intention to recover the costs through depletion will be presumed. But the regulations offer no help in deciphering what, if any, will be the effect of a failure to be precise as between expensing a dry hole and deducting it as an operating loss.

This is borne out by the only express provision for an election to deduct losses on dry wells. That option is open only after, and not as, an election to capitalize:

(iv) Option with respect to cost of nonproductive wells: If the operator has elected to capitalize intangible drilling and development costs, then an additional option is accorded with respect to intangible drilling and development costs incurred in drilling a nonproductive well. Such costs incurred in drilling a nonproductive well may be deducted by the taxpayer as an ordinary loss provided a proper election is made in the return for the first taxable year beginning after December 31, 1942, in which such a nonproductive well is completed. * * *

The 1944 situation was thus left for clarification in the following year when the necessary prerequisites to the contemplated election came into existence for the first time. In that year, as even respondent apparently concedes, petitioner made an unequivocal statement that it was deducting its intangible development costs as expense. We view this as sufficient.

In sum, we find that, as the regulation is constructed, it was not until 1945 that there could be an election by petitioner between ex-pensing its drilling operations and setting them up as capital items for recovery through depletion. When that option became available to it, it adequately noted its choice to charge the costs to expense. The deficiency is accordingly disapproved.

Reviewed by the Court.

Decision will be entered under Bule 50.

Bruce, </., concurs in the result.

1 Approved by H. Con. Res. 50, 79th Cong., 1st Sess. (July 21, 1945).