[995]*995OPINION.
Littleton :
The issue concerns the proper basis for computing the deduction from gross income allowable for the year 1918 on account of depletion of oil land operated by the petitioner under a lease contract.
The Revenue Act of 1918 provides in material part as follows:
Sec. 234. (a) That in computing the net income of a corporation subject to tlie tax imposed by section 230 there shall be allowed as deductions:
# * ⅜ ⅜ # ⅜ ⅜
(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, based upon cost including cost of development not otherwise deducted: Provided, That in the case of such properties acquired prior to March 1, 1913, the fair market value of the property (or the taxpayer’s interest therein) on that date shall be taken in lieu of cost up to that date: * * *
The controversy arises as the result of a limitation in the Revenue Act of 1913 with respect to the depletion allowable as a deduction from gross income for income-tax purposes. A part of the stipulation which we did not incorporate in our findings is this statement: “For the years 1913, 1914, and 1915, which were taxed under the 1913 Act, the depletion allowance could not exceed ‘ 5 per centum of the gross value at the mine of the output for the year for which the computation is made.’ ” It is further shown that 5 per cent of the gross income from March 1,1913, to December 31,1915, was $6,322.02, whereas the depletion sustained for this period was $91,686.15 and the argument presented by both parties proceeds on the theory that the depletion allowable as a deduction from March 1, 1913, to December 31,1915, was $6,322.02. Our consideration of the issue presented will, accordingly, be based on this agreement of the parties that the depletion allowable to the petitioner as a deduction from gross income from March 1, 1913, to December 31, 1915, was $6,322.02, whereas [996]*996the depletion sustained during this period on the March 1,1913, value was $91,686.16.
When the Commissioner came to determine the depletion allowance for the year 1918, he took the March 1, 1913, value of the recoverable oil reserve at March 1, 1913, $156,645, and the oil reserve at this time of 278,000 barrels as a starting point. From this he determined a depletion unit of 56.347 cents per barrel. The production from March 1, 1913, to December 31, 1915, was 162,717 barrels or a reduction in the March 1, 1913, value of the oil reserve of $91,686.15. In 1916 there was an additional cost of $30,000 and an addition to the oil reserve of 300,000 barrels. On account of this additional cost and the addition to the oil reserve, the Commissioner found it necessary to determine a new depletion unit on the basis of the oil j^et to be recovered in 1916, the March 1, 1913, value which remained undepleted at this 'time and the additions which were made at this time in cost and in the quantity of oil to be recovered. The value to be recovered in 1916 was determined by deducting from the March 1, 1913, value of $156,645 the depletion sustained from March 1, 1913, to December 31, 1915, $91,686.15, and adding to this remainder the additional cost in 1916 of $30,000, which showed a capital sum yet to be recovered of $94,958.85. The recoverable oil in 1916 was similarly determined; that is, from the oil reserve in 1913, 278,000 barrels, was deducted the oil produced from March 1, 1913, to December 31, 1915, 162,717 barrels, and to this remainder was added the addition to the oil reserve in 1916 of 300,000 barrels, which showed oil yet to be recovered in the amount of 415,283 barrels. The depletion unit was then arrived at by dividing the remaining recoverable value by the remaining recoverable oil, which produced "a unit of 22.866 cents per barrel. No additions are shown to cost or the oil reserve from 1916 to 1918. To obtain the allowance for depletion sustained for 1916, 1917, and 1918, the production in each of those years was multiplied by the depletion unit of 22.866 cents shown above. That is, for 1918 the depletion allowance determined and allowed by the Commissioner was $7,705.16, which was obtained by multiplying the oil produced in 1918, 33,697 barrels, by the depletion unit of 22.866 cents.
The preciso and specific question raised on account of the foregoing allowance is whether, in determining the depletion unit applicable to the year 1918, the action of the Commissioner was correct in reducing the recoverable leasehold value by the depletion sustained from March 1, 1913, to December 31, 1915, or whether, as the petitioner contends, such recoverable value should be reduced only by the depletion which the parties have agreed the petitioner was entitled to take as a deduction from gross income in its income-tax returns for those years. At the .outset it should be observed [997]*997that no particular method is outlined for determining the depletion allowance under section 234 (a) (9), supra, the controlling principle being that it shall be reasonable, nor are we interested in the means by which this end is accomplished. Our questions then are: Did the Commissioner determine a reasonable allowance ? And, if not, will such result be obtained by following the petitioner’s contention ?
That a reasonable allowance for the depletion of a wasting or exhaustible asset, such as we have here, will be obtained by considering that the recoverable value will become exhausted in the same ratio as that which gives value to the asset disappears, can hardly be questioned. Lynch v. Alworth-Stephens Co., 267 U. S. 364. For example, if at January 1, 1917, a taxpayer had purchased a leasehold for the recovery of oil at a cost of $100,000 with oil to be recovered of 400,000 barrels, and if, during 1918, 100,000 barrels had been produced, a depletion allowance of $25,000, or 25 cents per barrel would certainly be accepted as the reasonable depletion allowance for 1918. Nor do we understand that the petitioner would deny that the foregoing result is in full compliance with the statute, provided the full exhaustion in 1917 was likewise deductible. But the petitioner, in effect, says that the foregoing method would not be correct if there had been a limitation in a statute applicable to 1917 on account of which the full depletion sustained for 1917 had not been allowable as a deduction from gross income for 1917, and, it seems to us, contends further that whatever depletion was sustained in the prior year which was not allowable as a deduction from gross income in such year should effectually be allowed as a part of the depletion deductions in later years to the end that when the asset is finally depleted its full capital value may have been allowed as deductions from gross income. We find nothing in the statute which justifies this conclusion. What the statute provides for is a reasonable allowance and we can not interpret this to mean more than a reasonable allowance based upon the exhaustion which occurred during a given year. To follow the petitioner’s theory would be to say that the exhaustion which occurred from March 1, 1913, to December 31, 1915, of approximately $85,000, which the parties have agreed was hot an allowable'deduction in those years, should be added to deductions which are allowable on account of exhaustion which occurred in later years.
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[995]*995OPINION.
Littleton :
The issue concerns the proper basis for computing the deduction from gross income allowable for the year 1918 on account of depletion of oil land operated by the petitioner under a lease contract.
The Revenue Act of 1918 provides in material part as follows:
Sec. 234. (a) That in computing the net income of a corporation subject to tlie tax imposed by section 230 there shall be allowed as deductions:
# * ⅜ ⅜ # ⅜ ⅜
(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, based upon cost including cost of development not otherwise deducted: Provided, That in the case of such properties acquired prior to March 1, 1913, the fair market value of the property (or the taxpayer’s interest therein) on that date shall be taken in lieu of cost up to that date: * * *
The controversy arises as the result of a limitation in the Revenue Act of 1913 with respect to the depletion allowable as a deduction from gross income for income-tax purposes. A part of the stipulation which we did not incorporate in our findings is this statement: “For the years 1913, 1914, and 1915, which were taxed under the 1913 Act, the depletion allowance could not exceed ‘ 5 per centum of the gross value at the mine of the output for the year for which the computation is made.’ ” It is further shown that 5 per cent of the gross income from March 1,1913, to December 31,1915, was $6,322.02, whereas the depletion sustained for this period was $91,686.15 and the argument presented by both parties proceeds on the theory that the depletion allowable as a deduction from March 1, 1913, to December 31,1915, was $6,322.02. Our consideration of the issue presented will, accordingly, be based on this agreement of the parties that the depletion allowable to the petitioner as a deduction from gross income from March 1, 1913, to December 31, 1915, was $6,322.02, whereas [996]*996the depletion sustained during this period on the March 1,1913, value was $91,686.16.
When the Commissioner came to determine the depletion allowance for the year 1918, he took the March 1, 1913, value of the recoverable oil reserve at March 1, 1913, $156,645, and the oil reserve at this time of 278,000 barrels as a starting point. From this he determined a depletion unit of 56.347 cents per barrel. The production from March 1, 1913, to December 31, 1915, was 162,717 barrels or a reduction in the March 1, 1913, value of the oil reserve of $91,686.15. In 1916 there was an additional cost of $30,000 and an addition to the oil reserve of 300,000 barrels. On account of this additional cost and the addition to the oil reserve, the Commissioner found it necessary to determine a new depletion unit on the basis of the oil j^et to be recovered in 1916, the March 1, 1913, value which remained undepleted at this 'time and the additions which were made at this time in cost and in the quantity of oil to be recovered. The value to be recovered in 1916 was determined by deducting from the March 1, 1913, value of $156,645 the depletion sustained from March 1, 1913, to December 31, 1915, $91,686.15, and adding to this remainder the additional cost in 1916 of $30,000, which showed a capital sum yet to be recovered of $94,958.85. The recoverable oil in 1916 was similarly determined; that is, from the oil reserve in 1913, 278,000 barrels, was deducted the oil produced from March 1, 1913, to December 31, 1915, 162,717 barrels, and to this remainder was added the addition to the oil reserve in 1916 of 300,000 barrels, which showed oil yet to be recovered in the amount of 415,283 barrels. The depletion unit was then arrived at by dividing the remaining recoverable value by the remaining recoverable oil, which produced "a unit of 22.866 cents per barrel. No additions are shown to cost or the oil reserve from 1916 to 1918. To obtain the allowance for depletion sustained for 1916, 1917, and 1918, the production in each of those years was multiplied by the depletion unit of 22.866 cents shown above. That is, for 1918 the depletion allowance determined and allowed by the Commissioner was $7,705.16, which was obtained by multiplying the oil produced in 1918, 33,697 barrels, by the depletion unit of 22.866 cents.
The preciso and specific question raised on account of the foregoing allowance is whether, in determining the depletion unit applicable to the year 1918, the action of the Commissioner was correct in reducing the recoverable leasehold value by the depletion sustained from March 1, 1913, to December 31, 1915, or whether, as the petitioner contends, such recoverable value should be reduced only by the depletion which the parties have agreed the petitioner was entitled to take as a deduction from gross income in its income-tax returns for those years. At the .outset it should be observed [997]*997that no particular method is outlined for determining the depletion allowance under section 234 (a) (9), supra, the controlling principle being that it shall be reasonable, nor are we interested in the means by which this end is accomplished. Our questions then are: Did the Commissioner determine a reasonable allowance ? And, if not, will such result be obtained by following the petitioner’s contention ?
That a reasonable allowance for the depletion of a wasting or exhaustible asset, such as we have here, will be obtained by considering that the recoverable value will become exhausted in the same ratio as that which gives value to the asset disappears, can hardly be questioned. Lynch v. Alworth-Stephens Co., 267 U. S. 364. For example, if at January 1, 1917, a taxpayer had purchased a leasehold for the recovery of oil at a cost of $100,000 with oil to be recovered of 400,000 barrels, and if, during 1918, 100,000 barrels had been produced, a depletion allowance of $25,000, or 25 cents per barrel would certainly be accepted as the reasonable depletion allowance for 1918. Nor do we understand that the petitioner would deny that the foregoing result is in full compliance with the statute, provided the full exhaustion in 1917 was likewise deductible. But the petitioner, in effect, says that the foregoing method would not be correct if there had been a limitation in a statute applicable to 1917 on account of which the full depletion sustained for 1917 had not been allowable as a deduction from gross income for 1917, and, it seems to us, contends further that whatever depletion was sustained in the prior year which was not allowable as a deduction from gross income in such year should effectually be allowed as a part of the depletion deductions in later years to the end that when the asset is finally depleted its full capital value may have been allowed as deductions from gross income. We find nothing in the statute which justifies this conclusion. What the statute provides for is a reasonable allowance and we can not interpret this to mean more than a reasonable allowance based upon the exhaustion which occurred during a given year. To follow the petitioner’s theory would be to say that the exhaustion which occurred from March 1, 1913, to December 31, 1915, of approximately $85,000, which the parties have agreed was hot an allowable'deduction in those years, should be added to deductions which are allowable on account of exhaustion which occurred in later years. This theory is unsound. It may well be that under the limitations set out in the 1913 Act the full capital cost or March 1, 1913, value will never be recovered as a deduction in the form of a depletion allowance, but a limitation was expressly provided by the 1913 Act and its constitutionality has been upheld. Stanton v. Baltic Mining Co., 240 U. S. 103. We find nothing in the 1918 Act under which we are making our determination in this case which would permit [998]*998a greater depletion allowance in a given year than that based on the exhaustion which occurred in such year. When exhaustion of the capital value occurred from March 1, 1913, to December 31, 1915, of $91,686.15 and the petitioner was entitled to deduct only $6,322.02 of this amount, the excess which the petitioner was not entitled to deduct had as truly disappeared from the capital value as if it had been allowed as a deduction.
Nor can we agree that the case of United States v. Ludey, 274 U. S. 295, on which the petitioner relies, supports its position. That case involved the gain or loss on the sale of capital assets under the Revenue Act of 1917, and had for one of its questions the adjustment which should be made to cost or the March 1, 1913, value on account of depreciation and depletion from date of acquisition, or March 1,1913, to the date when the assets were disposed of. The court held that:
* * * Congress doubtless intended tbat the deduction to be made from the original cost should be the aggregate amount which the taxpayer was entitled to deduct in the several years.
This decision, however, related to an entirely different section of the statute from that which we are now considering. Here we are concerned with the reasonable allowance for depletion in a given year, and not with the gain which may be realized or loss sustained when the asset is ultimately disposed of. It is true that the court made the following statement in the Ludey case with respect to the theory of depletion:
The depletion charge permitted as a deduction from the gross income in determining the taxable income of mines for any year represents the reduction in the mineral contents of the reserves from which the product is taken. The reserves are recognized as wasting assets. The depletion effected by operation is likened to the using up of raw material in making the product of a manufacturing establishment. As the cost of the raw material must be deducted from the gross income before the net income can be determined, so the estimated cost of the part of the reserve used up is allowed. * * *
But this statement of the court can not be interpreted as meaning that because there was a gradual sale in one year, in the form of depletion sustained which is a proper charge against manufacturing operations for such year, a part of such depletion allowance is chargeable against the operations of another year, or that a reasonable allowance for a given year on account of depletion contemplates something other than the exhaustion which occurred in such year. In fact, to grant what the petitioner is asking would be giving to it in the taxable year that which the parties are agreed the statute expressly prohibited it from taking in such earlier years and when we find nothing in the statute to permit such a deduction.
In view of the foregoing, we are of the opinion that in determining the depletion allowance for 1918, the Commissioner was correct in [999]*999taking into consideration the actual depletion sustained from March 1, 1913, to December 31, 1915, regardless of the depletion which was allowable as a deduction for income-tax purposes in those years.
The original petition also contained an assignment of error with respect to the rate applied by the Commissioner in his determination of petitioner’s profits tax under the provisions of section 328 of the Revenue Act of 1918, but no evidence was introduced on account thereof nor was this error included in the amended petition or urged in the brief filed by the petitioner.
Reviewed by the Board.
Judgment will be entered for the respondent,
Tettssell, Geeen, and Van Foss an dissent.