concurring: I agree with the result reached in the majority opinion but would arrive there by a different path.
Under the regulation first quoted in the majority opinion, a taxpayer has an option to elect to expense intangible drilling and development costs, or to recover them through depletion and depreciation. If there is no clear indication in the return of the taxpayer that he elects to expense such costs, he is deemed to have elected to recover them through depletion and depreciation. The majority opinion says there was no such clear indication in the 1944 return. Once we agree on that proposition, the controversy is ended it seems to me. When a taxpayer capitalizes such costs, whether voluntarily or involuntarily, he recovers them through depletion and depreciation. The intention to recover costs through depletion and depreciation, in the absence of a clear indication in the return to expense them, is therefore synonymous with an intention to capitalize such costs.
In its 1944 return, petitioner included such costs (with a minor exception not material here) in the deductions taken in determining its net income. Petitioner’s accountant, who prepared the return, testified that it was his intention to take the deduction as an expense and not as a capital item. He also testified that he was familiar with and relied on a letter of the Bureau of Internal Revenue dated January 25,1944, reading in part as follows :
If a well drilled in 1944 is the first drilling done by lessee since December 31, 1942, his action on his 1944 income tax return with regard to this item will constitute his election to either charge such costs to depletable capital or deduct them as expense. Such an election is binding for all subsequent years.
The respondent argues that since the deduction taken by petitioner in his 1944 return was under the heading “Dry Holes and Worthless Leases” and amounted to the entire cost of the well (which included the cost of some unrecovered casing as well as the intangible drilling and development costs), such action is prima facie'evidence of an intention to capitalize intangible drilling and development costs rather than to expense them I do not agree with this argument. Petitioner’s 1944 return shows the amount in question was deducted in arriving at net income. This is, of course, not determinative because if it had elected to capitalize and had further elected to deduct all the costs of the dry hole as an ordinary loss, the deduction would have appeared in the same place on the return. However, the petitioner’s books show that it treated such costs as an expense and that, together with the return, is sufficient to show a valid election. Commissioner v. Sklar Oil Corporation (C. A. 5, 1943), 134 F. 2d 221. The regulations should not be construed so narrowly as to exclude evidence of petitioner’s actual intent. If the respondent is doubtful as to the construction to be placed upon such a deduction in a return, the method employed by the taxpayer in accounting for such costs on his books should be examined and taken into account.