dissenting: I am unable to agree that Burnet v. Harmel, 287 U.S. 103, and Alexander v. King, 46 Fed. (2d) 235, cited in the majority opinion, control the disposition of the instant case and justify the Board in sustaining the Commissioner in his plea for an increased deficiency.
It should be noted that the conveyances here involved are not oil and gas leases. What petitioner did was to execute several mineral deeds transferring to various persons fractional “interests in and to all of the oil, gas, and other minerals in and under, and that may be produced from, the following described lands situated in Seminole County, State of Oklahoma, etc.” and received for such mineral deeds the sum of $142,000 in the taxable year.
It seems to me that these transactions come within the purview of our decisions in J. E. Murphy, 9 B.T.A. 610; affirmed without opinion (D.C.Ap., Feb. 20, 1930); and J. D. Reynolds, 10 B.T.A. 651. In both of these cases we held that profits derived by the'taxpayers from the sede of their interest in oil and gas underlying land owned by them for more than two years prior to the date of sale were capital gains under section 206 of the Revenue Act of 1921.
An examination of the Murphy case will show that the granting clause in the deed in that case was almost identical with the granting clause in the deed in the instant case.
Of course the Board has held in many cases that bonuses and royalties received as rentals from oil and gas leases are not receipts from the sale of capital assets and therefore are not entitled to the capital gains provision of the law. One of these cases was Henry Harmel, 19 B.T.A. 376. The Circuit Court of Appeals reversed us in that case, following its decision in Ferguson v. Commissioner, 45 Fed. (2d) 573. The Harmel case was carried to the United States Supreme Court and that Court reversed the Circuit Court and affirmed the Board. Burnet v. Harmel, supra.
I do not find anything in the Supreme Court’s decision in Burnet v. Harmel, supra, which overruled our decisions in the Murphy and *600Reynolds cases, supra. What the Supreme Court held in Burnet v. Harmel was that bonuses and oil royalties received under an oil and gas lease were in the nature of rentals and therefore did not come within the meaning of the capital gains section of the revenue act and that this was true in Texas, the same as in other states, notwithstanding the courts in that state construed the lease to be a sale of oil in place. The General Counsel so interpreted Burnet v. Harmel, recently in G.C.M. 12118, published in Internal Revenue Bulletin, September 11, 1933, Vol XII-2, No. 37.
In discussing Burnet v. Harmel, the General Counsel in his memorandum says:
As heretofore indicated, the case of Burnet v. Harmel, supra, establishes the principle that all payments from lessee to lessor under an oil and gas lease are income from the use of the land and are not gain from the sale or conversion of capital assets. This rule should be applied in all cases where the instrument of grant may be classified properly as a lease. This office is of the opinion, however, that in the case of an unlimited conveyance for a cash consideration of the lessor’s reserve royalty under an oil and gas lease or of a fractional interest therein, as in the cases of J. E. Murphy v. Commissioner, supra, and the Appeal of Arma Taylor, supra, the conveyance may be treated as a sale of a capital asset within the purview of the capital gains provision (section 101) of the Revenue Act of 1928, provided the interest in the property sold otherwise falls within the definition of the term “ capital assets ” as defined in section 101.
In my judgment, tbe General Counsel correctly interpreted Burnet v. Harmel, in G.C.M. 12118.
In Alexander v. King, cited in tbe majority opinion, the court held that proceeds of sales of oil received as royalties under a lease were taxable as ordinary income and not as capital gain arising from the sale of capital assets. In so holding the court was in harmony with what the Board had decided in many cases.
The court there distinguished income received from oil royalties under a ilease from income received from the sale of the mineral content of land such as we had before us in the Murphy and Reynolds cases. By pointing out such a distinction, the court indicated a clear intent not to overrule these cases.
In view of the facts established in the instant case, I believe the capital gains provision of the law is applicable under the doctrine we laid down in the Murphy and Reynolds cases, supra, which cases have not been overruled by any Board or court case, so far as I have been able to find.
LaNSboN, Smith, and Adams agree with this dissent.