dissenting: I dissent from the views expressed in the majority opinion because I think they are directly opposed to the views which we expressed in some of the very cases which the opinion endeavors to distinguish. Among these cases are: Edwards Drilling Co., 35 B. T. A. 341; affd., 95 Fed. (2d) 719; Willis R. Dearing, 36 B. T. A. 843; affd., 102 Fed. (2d) 91; and Rocky Mountain Development Co., 38 B. T. A. 1303.
The essential holding of the above cases, in so far as they affected oil payment contracts similar to those involved in the instant case, was this: These oil payment contracts provide for contingent future payments out of the proceeds of oil if, as, and when produced and saved from the properties to which they apply, and the taxpayer’s right to receive such future oil payments is wholly contingent upon the happening of future events which, because indeterminable, may never occur. Therefore, the Board held in the above cited cases and other similar cases that such contingent oil payment contracts will *396not be treated as income even though they do have a definite ascertainable fair market value. Cf. Bedell v. Commissioner, 30 Fed. (2d) 622. Our decisions to which I have referred above were based upon Burnet v. Logan, 283 U. S. 404, and it seems to me they were correctly determined to be controlled by that case.
I will concede that the holding in the instant case, to the effect that the exchange of petitioners’ stock in the Jim Oil Co. for the oil payment contracts is a taxable exchange because the oil payment contracts had a fair market value, is distinguishable from such cases as Columbia Oil & Gas Co., 41 B. T. A. 38; affd., 118 Fed. (2d) 459. In the latter case the taxpayer, during 1933, sold eight oil and gas leases, together with the tangible well equipment in connection therewith, for a cash consideration of $550,000, but reserved the first oil, if, as, and when produced from certain fractional parts of each lease as an overriding royalty until certain maximum amounts would be received therefrom, the total maximum amounts being $350,000. We held that in computing the gain on the sale no part of the reserved oil payments should be considered as an amount realized from the sale.
In the instant case the Jim Oil Co. was the one which made the sale of the leases and reserved the oil payments and a comparable situation to what we had in Columbia Oil & Gas Co., case, supra, would be to have before us the Jim Oil Co. with the question to determine being as to what gain the Jim Oil Co. realized in the sale of the leases. That question we do not have before us. Therefore, I concede that the instant case is distinguishable on its facts from Columbia Oil & Gas Co., and that line of cases.
However, for reasons I have stated in the earlier part of this dissent, I do not think the instant case is distinguishable in principle from such cases as the Edwards Drilling Co. and Willis R. Dearing. Therefore, I respectfully record my dissent from the conclusions reached in the majority opinion.
Aeundelu and Leech agree with this dissent.