ArtjNdelIi,
dissenting: For reasons set forth in my dissent in Dorothy Glenn Coal Mining Co., 38 B. T. A. 1154, and for other reasons hereinafter discussed, I am impelled to disagree with the majority holding that denies percentage depletion to this petitioner.
It seems to me that the facts in this case give this petitioner an even stronger claim to an allowance of percentage depletion than is present in the Dorothy Glenn Coal Mining Co. case. This petitioner made an election in its 1933 return; it failed to make an election in 1934 because of the advice of counsel. Thereafter, it became convinced that it should have expressed an election and very promptly sought to do so by tendering an amended return. The original return was filed on March 15, 1935, and the amended return on February 6, 1936. While there is no statutory authority for amended returns, “it is well known that the Treasury Department, both in practice and by regulation * * * has been liberal in authorizing and accepting such returns.” Lucas v. Sterling Oil & Gas Co., 62 Fed. (2d) 951. In that case the taxpayers had exercised an option, granted by regulation, of charging certain expenditures to capital. In February of the following year, after other facts had been ascertained, it filed an amended return claiming the expenditures as operating expenses. The court held that under the facts there present “the initial return may properly be regarded as tentative in its nature, and as not constituting an election. In such case the taxpayer should be permitted to do what he had the right to do in the first instance.” In Morrow, Becher & Ewing, Inc. v. Commissioner, 57 Fed. (2d) 1, *1171the court recognized the lack of statutory authority for amended returns, but held that it was a breach of discretion for the Commissioner to refuse to accept an amended return wherein the taxpayer, greatly to its own benefit, sought to change from the installment basis to the deferred payment basis of reporting income. Cf. F. Harold Johnston, Executor, 33 B. T. A. 551. These cases establish the power in the Commissioner to accept amended returns under circumstances similar to those in the present case, particularly where the taxpayer acts with reasonable promptness to take advantage of a statutory privilege clearly granted. That is the situation here. Before the petitioner’s return was due for the next taxable year it sought to secure the statutory privilege of securing percentage depletion. Under the facts here I think that the petitioner should be permitted to do what it had the right to do in the first instance, namely, choose percentage depletion.
Mellott agrees with this dissent.