*816OPINION.
MokRis :While the respondent’s deficiency notice covers deficiencies for the years 1921 to 1923, inclusive, and while the petition states that the taxes “ in controversy are income and profits taxes for the years 1921 to 1923, inclusive,” the said petition, as amended, fails to allege error on the part of the respondent in other than the year 1921, and, since the evidence adduced at the hearing was confined to the issues pertaining exclusively to the year 1921, the respondent’s motion, made at the hearing, to affirm his determination of the deficiencies for 1922 and 1923 is granted.
Our sole question for determination is the “ actual cash value ” of the option “ at the time of ” its payment for the capital stock of the petitioner on January 25, 1911. (Sec. 326, Revenue Act of 1921.) It is conceded by counsel for the respondent that, if the value of the option is satisfactorily substantiated, there is no question about its inclusion in invested capital to the extent justified by the proof.
The identical question here, affecting this same option, was presented to this Board for consideration in Belridge Oil Co., 11 B. T. A. 127, involving the years just preceding 1921, and we there sustained the respondent in his determination “that the option was worth on January 25, 1911, only what was paid for it on January 5 of the same year,” i. e., $25,000. We concur in the views urged by the petitioner that the decision there, based upon the facts adduced at that time, which facts are not before us here, is not res adjudícala (Union Metal Mfg. Co., 4 B. T. A. 287), but, since the same property, the same issues, and the same principles with respect thereto are involved here, a brief review of that case may prove helpful.
Premising its consideration of the question there presented by directing attention to the terms of the option itself and to the fact that it was the result of negotiations between parties dealing at arm’s length, that they were dealing with prospective oil lands, that by their agreement they provided for their exploration, and that they fixed $25,000 as the actual cash cost of the option, the Board said:
In our opinion, under tlie circumstances of this case, this agreement is entitled to great weight. It was executed in the light of such knowledge as the parties possessed about the character and value of the land. It does not appear that the parties were unadvised of any of the elements of its value, nor does it appear that any new proof of value was discovered between the giving of the option and its assignment to petitioner*. The fact that one Van Slyke sometime in 1910 discovered an outcrop of oil sand on the property is not shown to be controlling. This discovery preceded the giving of the option to Hole and for aught that appears the existence of this outcrop may have been known to Hole when he acquired the option. The evidence does not indicate that at the time of the assignment petitioner had any greater knowledge of the oil-bearing properties oi; *817the land than had Hole when he took the option. When petitioner acquired the option the land was still unproven. No wells had been completed nor had the presence of oil in commercially profitable quantities been otherwise proven.
With the exception of the statement there made indicating the probability that Hole may have had knowledge of the existence of the outcroppings on this tract of land when he acquired the option, the same controlling principles discussed there obtain with equal force here.
While it appears that Hole was acting for the interests of all concerned, it can not be overlooked that he actually consummated the option with Mrs. Hopkins, and that he was in possession of no more nor less favorable information than Mrs. Hopkins, and therefore, it must be concluded that the transaction here, as found in the former decision, was at arm's length and that the cash consideration therefor was arrived at based upon all of the factors then known to them. There was, so far as we are informed, no deception practiced between the parties who consummated the deal. Granting that Hole and Mrs. Hopkins were totally ignorant of 'the information in the possession of Green, Whittier and Van Slyke (although the record does not show and we have no way of knowing that Mrs. Hopkins was not in possession of such facts, or facts equally as valuable), Hole knew, and so did Mrs. Hopkins know, the strategic location of, and the fact that the land contained prospective oil, and that was all that anyone knew with any degree of certainty. She could also reasonably infer that these men had informed themselves about the matter, and she may reasonably have suspected, and no doubt did, that they possessed valuable information about the land. Otherwise, they would not have been so willing and anxious, in fact, to venture $25,000 in the satisfaction of a mere empty curiosity. And it is not as though she, being an untrained woman in such matters, had been misled, because the entire transaction, as the record discloses, was supervised and consummated by her personal counsel and representatives, who must-be presumed to have taken proper precautions to protect her interests.
Let us review the evidence in support of the value contended for by the petitioner.
The record shows that the Associated Oil Company acquired acreage in Kern County, California, in 1910, at a cost to it of $66% per acre. The petitioner contends that that property was not as favorably located as the property in question. In fact, one of its witnesses so testified and attempted to give his reasons therefor, which are far from convincing. The witness testified that for the reason stated that property was less valuable than the petitioner’s tract. While we are reasonably convinced that the properties were similar *818in many respects, being in the same general locality, we are not convinced that they were less favorably located in respect to production than the petitioner’s properties. As we read the map before us, two of the tracts, there being five in all, were almost if not adjacent to the Lost Hills properties and within what appears to us to be a very short distance of producing wells. The other three tracts, as we locate them on the map, are as near, if not nearer, to the Lost Hills territory, then a producing field, than the petitioner’s tract. But our principal difficulty with this evidence lies in the fact that we do not know from the record what the state of development was with respect to this tract of land, whether or not oil had been discovered thereon at the time of its purchase at $66% an acre, or whether it was virgin soil, and, therefore, comparable to the petitioner’s tract. The evidence is very unsatisfactory respecting this purchase and consequently we are able to give it but very little weight in determining the “ actual cash value ” of the option in question.
Nor do we attach serious importance to the testimony of Green and Connell respecting his and Whittier’s purported offer of $500,000 for one-fifth of the capital stock of the petitioner which Connell owned, for the reason, among others, that as we view the testimony the transaction had not sufficiently crystallized to be regarded as more than a trifling indication of value. Connell testified that he inquired of the members of the board of directors as to the methods to be employed in the development of the properties — if they were to be extravagant — -and he stated that if they were to be he might be compelled to sell his interest. Whereupon Whittier inquired what he would take therefor, but Connell made no reply. It was then that the purported offer was made, to which Connell testified “ I changed the conversation and discussed the question of sale no further.”
We have the testimony of Green, who qualified as an expert through his long and intimate association with the oil business; and Harry It. Johnson, who qualified as an expert through his educational training in geology and his long experience in geological survey work, and, particularly his knowledge in the general region in question; and W. W. Orcutt, who also qualified as an expert through his educational training in geology and his later experience in the oil business.
Green testified that, in his opinion, the “actual cash ” or “ fair market value ” of the land on January 25, 1911, was $100 an acre, based upon sales in the Lost Hills territory — with which the record shows he had no familiarity other than pure hearsay — and upon what he considered that other companies would have been willing *819to pay for the land had they possessed the information which he and his associates did.
Johnson, who visited the properties in question about two weeks before the hearing, apparently for the purpose of qualifying himself as a witness with respect thereto, was asked:
Now, as a competent geologist, as a person who advised people in 1910, and in the second place taking into account and assuming the location of the structures reported by Mr. Van Slyke, and what in your opinion would a person have been authorized to pay, a person who is a willing purchaser and not compelled to purchase, to a willing seller, not compelled to sell, on January 25, 1911, a person being in possession of the information in possession of which- Mr. Green and Mr. Whittier and Mr. Van Slyke were — •
and he replied:
“ Very close to three million dollars — two million nine hundred and some odd thousand.” He said that his opinion as to the value of the land was based upon his scientific education as a geologist, and years of experience plus several years in this region, which, at that time “ was very active in the transfer of properties.” He did not, however, attempt to enlarge upon his knowledge of such transfers of property about which he spoke.
Orcutt, who visited the property about a week before the hearing, merely corroborated the general testimony of Johnson and testified, in reply to a hypothetical question somewhat similar to that put to Johnson, that in his opinion the fair market value of the land in 1911 was $2,700,000, based, as he said, upon the similarity of the outcroppings and structure of this property to that of Lost Hills and other fields and upon his scientific education in geology and his experience in the profession.
Hone of these witnesses testified to the actual cash value of the option itself, nor did they testify to any cases where similar options had been sold. In fact they demonstrated no knowledge on the subject of options.
The petitioner proposes tUjat we accept the value of $2,700,000 placed upon the land by Orciitt, and it contends that the “ actual cash value” of the option on January 25, 1911, when it was transferred to it, was the difference between that figure and the purchase price, $1,028,198.67, to be paid for the land in the event of the exercise of the option, or an actual cash value of the option itself of $1,671,801.33.
Assuming generally the correctness of the theory urged by the petitioner, we are confronted with this situation: An “ actual cash ” payment for the option in January, 1911, of $25,000, which the petitioner would have us supplant by a purely theoretical value, measured by the value of the land, based upon opinion testimony supplied *820about twenty years after consummation of the transaction. Of course there are occasions where no actual cash is involved in the transaction, necessitating a substitute for tax purposes, but that is not the case here. It seems to us that if the theory urged by the petitioner, that is, of assigning a value to the option equal to the difference between the theoretical value of the land and the proposed purchase price thereof as set forth in the option, has anyplace in such determinations of value at' all, it should and neces-sarity must be confined to those cases in which no, or only a very nominal, consideration was given for the option and not where, as here, a very substantial price was paid, to wit $25,000, and which appears to be the real cash value thereof at the time of the transaction.
Naturally when property is purchased at a stated time for $25,000 aiid it is contended, twenty years later, that that same property would have sold for the huge sum of $1,671,801.33 cash at that time, the human mind becomes skeptical and requires considerably more than ordinary proof. Now all that we have, of any tangible importance, is opinion evidence of one man who was a party to the transaction and the testimony of two experts who visited the property just a few days before the hearing in order that they might visualize and confirm, if possible, conditions as they were supposed to exist thereon in 1911. It is because ox the extremely flexible nature of opinion testimony that such should be carefully weighed. These witnesses testify unqualifiedly to the respective values which we have referred to before and they did so primarily, if not entirely, from their geological observations. Witness Johnson testified that in this region all geology was on the surface. As we understand this, it may be reasonably inferred that any geologist might visit this particular piece of property and determine from surface formations that the property contained oil. If the matter was so obvious to the trained expert, we are unable to understand why others who had already explored this field were unable to discover the presence of oil, for, as Green himself testified, other companies had scouts over the property, but had never discovered any indications of oil.
There is still another important factor which influences our conclusion, and that is that Mrs. Hopkins had agreed to sell the entire tract of land, after the discovery of oil thereon, for $1,028,-198.67, which figure was fixed with the most optimistic outlook that could possibly attend the development of the land and, consequently, represents what the parties regarded the fair market value of the tract of land to be as a producing oil field. Therefore, we can not minimize this factor when the parties urge us to *821place a value on the option itself, in 1911, prior to the actual discovery of oil, of $1,671,801.33, or nearly $700,000 more for the option than the vendor was perfectly willing to sell the land for as, if and when it should become a producing oil field.
Then, too, the testimony of these experts is retrospective in its nature, a factor which must be considered in weighing the evidence. A somewhat analogous situation was presented in Tracy et al., 15 B. T. A. 1107, where the petitioner introduced various real-estate men to testify to the March 1, 1913, value of certain realty. With respect to their testimony the Board premised its considerations by saying: “ None of these witnesses had actually made an appraisal of the Manhattan property in 1913, but were expressing their opinion at the present time of what the value of the property was in 1913,” which is true here, and, continued the Board: “ This testimony, then, is retrospective in its nature and is subject to the weaknesses of that type of appraisal.” Upon rejection by the Board of the values testified to there the matter was reviewed by the Circuit Court of Appeals in Tracy v. Commissioner, 53 Fed. (2d) 575. It was there contended that, the only evidence of value introduced before the Board being opinion evidence of experts, the Board was under obligation to accept the petitioner’s valuation, and the court said:
* * * While the opinions of experts are competent and often very helpful, such evidence is not considered binding upon the tribunal before which it is produced, at least not to the extent that such tribunal is bound to follow it if contrary to the best judgment of its members. Anchor Co. v. Commissioner, 42 F. (2d) 99 (C. G. A. 4) ; Am-Plus Storage Battery Co. v. Commissioner, 35 F. (2d) 167 (C. C. A. 7). But it is true that no administrative board may act arbirarily and without - evidence, and this suggests other questions which here arise, viz., whether there was substantial evidence before the Board to support its findings and, if so, the effect to be given to this fact.
See also Uncasville Mfg. Co. v. Commissioner, 55 Fed. (2d) 893.
In reaching the conclusion which we deem inescapable, we do not do so arbitrarily, nor have we substituted our own “ knowledge, experience and judgment ” for the opinions of these experts. There are two bases of valuation of record — not merely the one which the petitioner would have us accept — and after carefully weighing all considerations pertaining to each of them the result is that we are forced to reject the valuations tendered by these experts and to adopt the other. In other words, we are not convinced from the evidence that the theoretical “ actual cash value ” should be substituted for the value as measured by “ actual cash.” Cf. Van Kannel Revolving Door Co., 11 B. T. A. 1209; aff'd., 36 Fed. (2d) 1022; and Keystone Wood Products Co., 19 B. T. A. 1116.
Reviewed by the Board.
Judgment will be entered for Che respondent.