*1015OPINION.
MoRRis:The taxpayer contends that as a matter of law she is entitled to an equitable apportionment of depletion on the basis of discovery value regardless of the cost of development sustained by the lessees, as the provision in section 214 (a) (10) of the Revenue Act of 1918 which provides for the equitable apportionment of the depletion allowance between the lessor and lessee is mandatory. That section provides:
In the case of mines, oil and gas wells, other natural deposits and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case, based upon cost including cost of development not otherwise deducted: Provided, That in the case of such properties acquired prior to March 1, 1913, the fair market value of the property (or the taxpayer’s interest therein) on that date shall be taken in lieu of cost up to that date: Provided further, That in the case of mines, oil and gas wells, discovered by the taxpayer, on or after March 1, 1913, and not acquired as the result of purchase of a proven tract or lease, where the fair market value of the property is materially disproportionate to the cost, the depletion allowance shall be based upon the fair market value of the property at the date of the discovery, or within thirty days thereafter; such reasonable allowance in all the above cases to be made under rules and regulations to be prescribed by the Commissioner with the approval of the Secretary. In the case of leases the deductions allowed by this paragraph shall be equitably apportioned between the lessor and lessee; * * *. [Italics ours.]
It will be noted that the last sentence upon which the taxpayer relies contains the words “ the deductions allowed by this paragraph.” Before there can be any equitable apportionment of depletion between the lessor and lessee in the case of leases it must be determined that there is an amount allowable. The section provides for a reasonable allowance for depletion based upon cost, the fair market value of the property as of March 1, 1918, when acquired prior thereto, or the fair market value of the property at the date of discovery, when discovery is made by the taxpayer, on or after March 1,1913, and not acquired as the result of purchase of a proven tract or lease, where such fair market value is materially disproportionate to the cost. A prerequisite, therefore, which must be met by either a lessor or lessee in order to sustain a depletion allowance based on discovery value, is a showing that such value is materially disproportionate to the cost.
Article 220 (a) (4) of Regulations 45 provides that cost .includes only the cost of exploration and development work to the time the *1016well was brought in, but counsel for the Commissioner contends that cost includes the total estimated cost of drilling and equipping the wells necessary to exploit the reserves. Which of these positions is correct, or whether only the original cost or March 1, 1913, value of the property should be taken into consideration, it is unnecessary to decide in this appeal. Even taking the position most favorable to the taxpayer, the determination of the Commissioner must be approved, as we have no evidence as to original cost of the tracts in 1904; as to any intervening costs between date of acquisition and the leasing of the premises; as to cost of exploration and development of the properties which resulted in the discovery of oil, or as to value, if any, on March 1, 1913.
Judgment for the Commissioner.