*3306 1. Depletion on coal mined under lease during the year 1920 denied, due to lack of showing of the cost of lease.
2. A deduction based upon the extraction of 89,000 tons by unlawful trespass by adjoining coal-mining company, and the loss of 40,000 tons additional which became unminable because of such trespass, denied.
*124 In this proceeding petitioner seeks a redetermination of income and profits taxes for the year 1920 for which the Commissioner has determined a deficiency of $3,671.34.
Petitioner alleges error on the part of the Commissioner in failing to allow a deduction for depletion on account of the extraction *125 of coal from the leasehold in 1920; second, in failing to allow a deduction based upon the removal of 89,000 tons of coal by unlawful trespass by adjoining coal-mining company, and the subsequent loss of 40,000 tons which became unminable due to such trespass.
FINDINGS OF FACT.
The petitioner is a corporation organized September 3, 1915, under the laws of the State of Kentucky, with principal office at London, *3307 Laurel County, Ky. The petitioner had a capital stock of $25,000 par value.
On September 3, 1915, D. C. Edward, L. B. McHargue, and H. C. Thompson organized the E. M. T. Coal Co., and transferred certain mine equipment to the corporation in exchange for its capital stock. On September 9, 1915, a contract of lease for a term of 16 years was executed between the No. 9 Coal Co. and H. C. Thompson, who was acting as agent for the petitioner, covering certain coal rights located at Island, McLean County, Ky. The leasehold consisted of two tracts of land, both under lease to the No. 9 Coal Co., one known as the R. C. Bryant Farm, containing 585 acres, the other known as the J. W. Patterson Farm, containing 500 acres. The Bryant lease held by the No. 9 Coal Co. was executed April 23, 1902, and ran for a period of 30 years thereafter, and called for a royalty rate of 3 cents a ton. The Patterson lease was acquired by the No. 9 Coal Co. August 24, 1915, and ran for a period of 30 years, with an average royalty rate of 3 cents a ton. The lease between the No. 9 Coal Co. and the petitioner carried a specified royalty rate of 5 cents a ton. Under the terms of the lease the petitioner*3308 had to remove certain mine equipment and machinery from Lily, Ky., to Island, Ky., and install and open up a mine by sinking a shaft, building a tipple, power house, blacksmith shop, mule barn, and about one mile of standard gauge railway track, and to develop the mine up to a production capacity of 500 tons of coal per day. The lease also included the right to use the storehouse, miners' residences, blacksmith shop, stock of merchandise, mine equipment and 13 mules. The petitioner gave a bond for the performance of these conditions and the lessor in turn agreed to pay to the lessee $5,000. The petitioner proceeded to install machinery and develop the property, and on May 1, 1917, it subleased the mine to two individuals who later organized the Island Block Coal Co., which company continued in possession of the mine until May 1, 1919, when they abandoned operations and the property was taken over by the petitioner. Petitioner spent about $15,000 in placing the mine in good condition, and during the year 1920 operated the *126 property and extracted 55,271 tons of coal, upon which it claimed a depletion deduction of 10 cents a ton.
At the close of 1920 certain evidence*3309 was brought to the petitioner which indicated that the coal-mining company adjoining them was trespassing upon the leased premises. Petitioner thereupon proceeded to take steps to find out the extent of trespass and quantity of coal removed, and in 1921 ascertained from a survey that approximately 89,000 tons had been removed by the trespasser, and that 40,000 tons additional had been rendered useless on account thereof. Petitioner thereupon entered a suit for damages on account of such trespass but did not press the suit owing to the fact that it hoped to make a settlement out of court. Failing in the effort to make a settlement the case finally went to judgment and a verdict was rendered in the year 1925 in favor of the petitioner against the trespasser, the White Coal Mining Co., for $6,416.23. Upon the judgment execution was issued and levied on some of the White Coal Mining Co.'s property. The property thus levied on was sold under a sheriff's sale to the petitioner for $1,000.
The vein of coal on the leased premises was from four to five feet thick and contained recoverable coal of approximately 5,000 to 6,000 tons an acre.
OPINION.
VAN FOSSAN: The leasehold on*3310 the coal properties was acquired subsequent to March 1, 1913; therefore, any allowance for depletion thereof must be based upon cost. The record shows that the lease was acquired by the petitioner after its organization through one of its stockholders acting as agent. No bonus was paid for the lease, although a bond was required, but on the contrary the lessor paid to the petitioner $5,000 as an inducement to take the lease. The royalty rate specified under the petitioner's lease was 5 cents a ton, which was 2 cents in excess of the rate required in the Patterson lease, which was acquired by the No. 9 Coal Co. one month earlier.
It appears that the respondent has allowed all the capital expenditures made for plant equipment and development, and has granted adequate deductions on account of the depreciation or exhaustion thereof, no controversy existing on this point.
Since it has not been shown that any amount was paid for the lease or could be assigned as cost of the lease in 1915, there is no basis upon which depletion could be allowed. The action of the Commissioner in refusing to allow depletion for the year 1920 is accordingly approved.
A second issue relates to a*3311 deduction on account of coal taken and lost by trespass. The petitioner claims that it is entitled to *127 some deduction on this account, and has entered its claim for a loss due to such circumstances or an allowance for depletion on the amount of coal involved. This second contention is answered by our disposition of the first issue in this case, and no depletion is allowable. Similarly, there exists no basis for loss, since loss must be based upon cost. Furthermore, it has not been shown that the coal was extracted by the trespasser during the year 1920, and may have been largely extracted prior thereto.
The judgment of the court, the award of damages, and the acquisition of some of the assets of the White Coal Mining Co., all happening subsequent to 1920, do not affect the tax liability for the year 1920.
The action of the Commissioner in refusing to allow any deduction on account of this trespass is approved.
Judgment will be entered for the respondent.