dissenting: “Personal holding company income” is defined by section 353 of the Revenue Act of 1936 (added by section 1 of the Revenue Act of 1937) as including “mineral, oil, or gas royalties” except in circumstances not here present. The Court holds that the cash bonus of $120,000 received by the petitioner as a part of the consideration for the assignment of its interest in a lease to the Humble Oil & Refining Co. was not a “royalty” since the payment was “in no way contingent upon or payable from production of oil or gas.”
I do not think that this observation is correct, in the light of many court opinions.
In Burnet v. Harmel, 287 U. S. 103, the Supreme Court held that' a bonus and royalties received by the lessor under an oil lease were not capital gains, but were ordinary income, and were both subject to depletion deductions. The Court said:
* * * Bonus and royalties are both consideration for the lease, and are income of the lessor. We cannot say that such payments by the lessee to the lessor, to be retained by him regardless of the production of any oil or gas, are any more to be taxed as capital gains than royalties which are measured by the actual production. * * *
To the same effect is Murphy Oil Co. v. Burnet, 287 U. S. 299; Palmer v. Bender, 287 U. S. 551; Bankers’ Pocahontas Coal Co. v. Burnet, 287 U. S. 308; Anderson v. Delvering, 310 U. S. 404; and Commissioner v. West Production Co., 121 Fed. (2d) 9; certiorari denied, 314 U. S. 682.
In Anderson v. Helvering, supra, the assignees of certain oil interests were held taxable on all of the proceeds from the sale of the oil produced, though a portion of such proceeds was required to be paid to the assignor under the contract of assignment. In its opinion the Court said, referring to Burnet v. Harmel, supra; Murphy Oil Co. v. Burnet, supra, and Bankers’ Pocahontas Coal Co. v. Burnet, supra, that: “Cash bonus payments, when included in a royalty lease, are regarded as advance royalties, and are given the same tax consequences.”
In Sneed v. Commissioner (C. C. A., 5th Cir.), 119 Fed. (2d) 767; affirming 40 B. T. A. 1136, the court said:
* * * It is too well settled to require further discussion that when oil and gas reserves are leased for bonus and royalty, the bonus is an advanced royalty, and includes not only gain which is income but also a return of capital about to be depleted which is not income. * * *
In most of the above cited cases the taxpayer was the owner of the fee in the land and had executed an oil or gas lease for a cash bonus plus an additional amount to be paid from production. But the same rule applies where a lessee assigns his interest in a lease for a like consideration. See Cullen v. Commissioner (C. C. A., 5th Cir.), 118 Fed. (2d) 651; Commissioner v. West Production Co., supra.
I can see no reason for giving the term “royalty” included in the definition of personal holding company income a different connotation from that which has been given to the term in the court opinions above cited.
ARNOLD, Hill, and Opper, JJagree with this dissent.