*1499 1. Petitioner received income from a certain oil and gas lease in the taxable year at least in the amount reported on his income-tax return.
2. Value of oil reserve determined as of the date of its acquisition by devise.
*599 The respondent asserts deficiencies in income tax for the years 1922, 1923 and 1924, in the respective amounts of $2,329.93, $2,090.69 and $2,070.67. For his causes of action the petitioner alleges (1) that he did not receive the income upon which the tax for 1922 has been determined, and (2) that for the years 1923 and 1924 the respondent has allowed insufficient depletion on the production of oil from a lease in which he owned a certain royalty interest. The two proceedings have been consolidated for hearing and decision.
FINDINGS OF FACT.
The petitioner is a resident of Sand Springs, Oklahoma. As a boy he received only a common school education. In 1898 he enlisted in the United States Army and served until some time in 1920. During most of his service he was a member of a band and had attained the rank of sergeant, *1500 with pay of $85 per month when he was discharged. In 1907 he married Minnie E. Atkins, hereinafter called Minnie E. Folk, a half-blood Indian of the Creek Nation who was at that time employed as a servant in the home of an army officer. Minnie E. Folk never received any allotment of land as an Indian.
In 1914 petitioner and his wife executed an oil and gas lease to the Sand Springs Home, a charitable corporation organized and controlled by Charles Page, a successful oil operator, on a certain 160 acres of land situated in Creek County, Oklahoma. This land had been allotted to Thomas Atkins, a half-blood Creek Indian who was reputed to be the son of the petitioner's wife, and who, prior to 1914, *600 had died intestate without heirs. Under the terms of the lease petitioner and his wife received one-eight royalty on all oil and gas produced from the land and received a bonus of $5,000. Several other women claimed to be the mother of Atkins and the fact that Minnie Atkins was actually his mother and sole heir was not finally determined until November 21, 1922, when the United States Supreme Court approved such finding theretofore made by the United States Circuit Court*1501 of Appeals. Pending final adjudication of title to the land the lessee produced oil and gas from the lease and the royalties due the lessees accumulated in the hands of properly constituted trustees. Shortly after the execution of the lease the wife of the petitioner went to Tulsa and Sand Springs and there remained until she died, testate, on May 24, 1919. Prior to her death one-fifth of her royalty interest was assigned to one E. C. Hanford. At the date thereof she owned twelve-fifteenths of one-eighth of the royalty reserves from the lease in question and royalties undistributed pending litigation as to the legal heir of Thomas Atkins had accumulated in the amount of $199,556.70. During the time that Minnie E. Folk resided in Tulsa and/or Sand Springs, all her traveling and living expenses, in the amount of $15,680.87, were advanced to her by Charles Page, who also paid $23,213.71 on her behalf for gross production and other taxes and expenses.
In her will Minnie E. Folk bequeathed the petitioner two-thirds of any and all property which she might own at date of her death and one-sixth thereof to each of her two sons. This will was duly probated in the County Court of Tulsa*1502 County, Oklahoma, on March 20, 1920, and the petitioner and one S. W. Brown were appointed executors to the estate. Included in the property devised to the petitioner was an eight-fifteenths interest in the lease here involved and in the accrued royalties resulting from the operation thereof by the Sand Springs Home. In the settlement of the estate the decedent's interest in the lease in question was appraised at $54,000 for Oklahoma inheritance-tax purposes. In the Federal estate-tax return filed by the executors on February 20, 1923, the only property listed was accrued royalties in the amount of $199,556.70. Decedent's interest in the lease was not included in the return.
On June 1, 1920, petitioner remarried and thereafter, during the years 1920, 1921 and 1922, lived in Sand Springs in a house that was owned by Page. During the period he paid no rent for the house and was employed by Page as an automobile driver and handy man about the place at a monthly wage of $75, which was his only income for service or labor. In the year 1922 he was living with and supporting his wife and three small children.
*601 After the court decided on November 21, 1922, that Minnie*1503 E. Folk was the sole heir of Thomas Atkins and thereby established the petitioner's right to eight-fifteenths of the oil and gas royalty that had accrued from the operation of the lease by the Sand Springs Home, the petitioner and Page made some sort of settlement in which petitioner agreed to assign his interest in the accrued royalties to Page for certain considerations, the nature of which are indicated in the following extract from a letter written by Page to the petitioner on December 28, 1922:
I hereby hand you a deed to the home on North Main Street, and $100,000 worth of the capital stock of the Sand Springs Cotton Mill Company, and there is still $25,000 pending, just as soon as you and your wife get together and see how you want it handled, and your royalty, let me know.
On December 30, 1922, the petitioner assigned to Page his two-thirds of royalties accrued under the lease to which he was entitled under the will of his wife. Later he petitioned the County Court of Tulsa County to substitute Page in his stead as the distributee of all such royalties as accrued up to January 15, 1923. The petition was granted and under an order of the court the accrued royalties were*1504 thereafter distributed to Page. At this time the cotton mill was under construction. It was completed in 1925. It is still in operation, but there has been some sort of a reorganization and it is now known as the C. R. Miller Manufacturing Corporation. About Cotober 23, 1925, Page turned over to the petitioner $25,000 par value of the preferred stock and $75,000 par value of first mortgage 6 per cent gold bonds of the C. R. Miller Manufacturing Corporation. On September 25, 1926, petitioner received $4,500 in cash as interest on such bonds or dividends on the preferred stock.
Petitioner was not familiar with business methods and practice and left his affairs in charge of Page, in whom he had the utmost confidence. His income-tax returns for 1922, 1923 and 1924 were made out by Page or some one in his employ and he signed and swore to whatever was presented to him. In the return for each of such years depletion was deducted at the rate of $1.113 per barrel and in the respective amounts of $22,185.99; $24,981.83; and $20,564.95. Upon audit the Commissioner allowed depletion in the respective amounts of $3,988.19, $5,627.54 and $4,941.68, based on a value of $56,000 at May 24, 1919, the*1505 date of acquisition by devise. The parties agree on the number of barrels of production for each of the taxable years.
The fair market value of the petitioner's eight-fifteenths interest in the lease here involved at May 24, 1919, was $100,000.
*602 OPINION.
LANSDON: Petitioner's first contention is that he received no part of the income for 1922 upon which the deficiency herein is based. His theory is that the so-called Page interests, owners of the operating interest in the lease in question, swindled him out of his share of the royalties that accrued prior to December 31, 1922. On the record here there is no basis for this allegation. In the year 1922 he received stock of the par value of $100,000 and a house in Sand Springs that was worth a substantial amount in exchange for his interest in the accrued royalties which he assigned to Page on December 30, 1922. The evidence fails to convince us that such property had a value less than the income reported by the petitioner for the taxable year. On this issue the determination of the respondent is affirmed.
In computing allowable depletion for each of the taxable years the parties disagree as to the value of*1506 the petitioner's interest in the oil reserve acquired by devise at May 24, 1919, but agree that the true value at such date must be determined in conformity with the provisions of section 202(a) of the Revenue Act of 1921. Cf. . The respondent has based his computations on a valuation of $56,000, which is $2,000 in excess of the appraisal of the property for Oklahoma and Federal estate-tax purposes. There is a presumption that the respondent's determination of a deficiency is correct. The petitioner, therefore, has the burden of proof to show that the respondent erroneously determined the value of his interest in the lease at date of his receipt thereof and that the deficiency asserted is not correct.
The evidence adduced by the petitioner consists of a valuation report of a qualified oil engineer and of the oral testimony of such engineer. Counsel argues that the record establishes the value of the petitioner's interest in the lease at $227,076.64 at May 24, 1919. This value was determined by the use of factors of a very doubtful weight and application. The witness testified that many good wells in the Cushing field have*1507 either been destroyed or greatly impaired by salt water and that the cement process of plugging off such water had been developed about that time and, in his judgment, added to the fair market value of all oil-producing properties in the Cushing area. He also testified that his computation of value was based on a price of $2.25 per barrel, plus a premium of 75 cents. The Commissioner can hardly be called on to determine values for depletion purposes over the term of a long-time lease on the basis of the highest prices ever paid for oil in the mid-continent field. The cement method of excluding salt water from oils was only in the experimental *603 stage in 1919 and even when generally applied it can hardly be said that it increases the recoverable reserve, although it may shorten the time of recovery. After careful consideration of all the evidence, we think it falls short of establishing the full value asserted by the petitioner, but it does indicate clearly that the petitioner's interest in the lease in question had a fair market value in excess of $56,000 at May 24, 1919. Accordingly, we have found that the basis of depletion is $100,000.
Judgment will be entered*1508 under Ruel 50.