dissenting: I can not agree with the holding of the majority opinion that this petitioner is not entitled to percentage depletion for the year 1934. In denying a deduction for percentage depletion the effect is to deny to petitioner any depletion deduction whatever, inasmuch as it has no cost or other basis recognized by statute on which to compute depletion on the unit basis. This denial will operate in perpetuity, unless the law be changed, and in utter disregard of the actual depletion of the properties. I do not believe that this was the intended result of Congress in granting the privilege of a choice under section 114 (b) (4). Neither do I think that such a result necessarily follows from the language used by Congress in the statute.
True, as said in the majority opinion, Congress may limit and condition deductions and the prerequisites to their allowance. But the depletion provisions of the Revenue Acts of 1932 and 1934 are liberalizing, rather than limiting, provisions. The allowance of percentage depletion to coal miners by the Revenue Act of 1932 gave *1163depletion deductions to taxpayers who, because of a lack of basis, could not take depletion deductions under prior statutes. And to those who had a basis, the statute gave the choice of taking the greater of unit or percentage depletion. In the light of these provisions it is difficult to find any restrictive intent in the allowance of percentage depletion to coal mines. Consideration of these provisions from this point of view indicates the way to the solution of the question here. The sound premise, it seems to me, is that Congress intended to allow depletion deductions by one of the two methods, and intended to give taxpayers a right to elect whichever method they deemed most favorable under the circumstances in each case. From this premise it follows logically that an election is to be made only where a choice between the two methods is available, and that where there is no choice percentage depletion is to be allowed. Election presupposes the existence of the right of a choice between alternatives. Allis v. Hall, 56 Atl. 637; Standard Oil Co. v. Hawkins, 74 Fed. 395; McIntosh v. Wilkinson, 36 Fed. (2d) 807; Tide Water Oil Co., 29 B. T. A. 1208; 48 Harvard Law Review 1281. To say that one is put to his election where he lias no choice is to give him nothing more than a “Hobson’s” choice. The Acts of 1932 and 1934 both use the terms “elects” and “election.” These words become meaningless if applied so as to require an election where there is no right of choice. Where this situation exists and the taxpayer has no alternative from which to choose, then percentage depletion should be allowed under the opening sentence of section 114 (b) (4) that “the allowance for depletion shall be, in the case of coal mines, 5 per centum * ⅝ ⅜.”
It is not a sound answer to the taxpayer to say that it has lost nothing by the denial of percentage depletion because prior statutes did not give percentage depletion to coal mines. The 1932 and 1934 statutes are designed to correct that situation and to give to coal properties the deductions allowed to other depletable properties under the earlier statutes.