*1652 1. Expenditures for fuel, wages, repairs, hauling, etc., in connection with the drilling of oil wells are capital expenses recoverable through depreciation rather than depletion.
2. Expenses of shooting oil wells with nitroglycerine incurred before the wells are placed in commercial production is a capital expense.
3. Costs incurred during period of commercial production for pulling rods and tubing, recupping the working barrels and cleaning out wells to restore such wells to original production, such recupping being made necessary by the fact that cups wear out in three or four months, and the pulling of tubing being necessary to remove sand that has filtered in to the uncased portion of the well, are chargeable to operating expense.
*360 In these proceedings, duly consolidated for hearing and report, respondent determined deficiencies for the years 1926, 1927 and 1928 in the respective amounts of $46.13, $979.49 and $1,167.03. The principal issue arises from respondent's action in denying depreciation on*1653 certain drilling expenses. Further issues involve the classification, whether as capital expenditures or ordinary expense, of items incurred for shooting oil wells and for pulling rods and tubing and recupping wells. The facts were stipulated as follows.
FINDINGS OF FACT.
At all times since the 15th day of March, 1926, petitioner has been and now is a corporation duly organized under the laws of the State of North Dakota, and doing business in Toole County, Montana, with its principal place of business at Shelby, Toole County, Montana. During the years 1926, 1927 and 1928 petitioner was engaged in the business of developing and operating a certain oil and gas lease in Toole County, Montana, and producing crude oil therefrom, and in connection with such operations petitioner was engaged in drilling, owning and operating oil wells and building, erecting, constructing and owning necessary camps and equipment for the construction and operation of said wells. During the said years 1926, 1927 and 1928 petitioner kept its books and made its income-tax returns on a calendar year and an accrual basis, and during said years petitioner elected to charge to capital account all drilling*1654 expenses incurred in its operations, including expenses paid for wages, fuel, repairs, hauling, etc., *361 in connection with the exploration of the property, drilling of wells and development of the property.
During the year 1926 petitioner drilled five wells on its 160-acre oil lease in Toole County, Montana, being wells numbered, 1, 2, 3, 4 and 5, all of which wells were commercial producing wells, and petitioner expended in the drilling of said five wells to the producing sand and the equipment of same, the sum of $38,750.40. Forty per cent thereof consisted of well equipment expenditure and 60 per cent thereof consisted of expenditure for wages, fuel, repairs, hauling, etc., incurred in drilling the wells in connection with the development and exploration of the property. Immediately after the wells were drilled to the producing sand, and before the same were placed on production, petitioner expended in said year the further sum of $3,058.41 in causing the producing sand in the wells to be shot with nitroglycerine and cleaning out the same, for the purpose of improving the production thereof. In reporting its income for the year 1926 petitioner reported the above*1655 mentioned sum of $3,058.41 as an operating expense and deducted said sum from its gross income. The deduction was disallowed by respondent in his notice of deficiency and the same was charged to petitioner's capital account. In addition to the above expenses, petitioner expended for necessary camp buildings during 1926 the sum of $266.10 and for a necessary power plant the sum of $10,655.64, both being necessary for operation of said lease. During the calendar year 1926 petitioner had a gross income from its oil well operations of $11,827.01; also, income from cash discounts amounting to $286.52. Exclusive of depreciation and depletion and exclusive also of expenses incurred by petitioner in shooting with nitroglycerine the producing sand in wells drilled by petitioner during said year and cleaning out the same, petitioner had deductible operating expenses incurred during 1926 in the operation of the oil lease amounting to the total sum of $6,539.87, and in addition thereto petitioner paid taxes during said year to the State of Montana and County of Toole, amounting to the total sum of $316.76.
It is agreed that petitioner's share of the estimated recoverable oil content from*1656 said lease was 300,000 barrels, and that during the year 1926 the number of barrels recovered by petitioner as its share of the oil produced was 9,362.86. The oil and gas lease from which the oil was recovered was acquired by petitioner in the year 1926 at a cost of $16,000.
During the calendar year 1927 petitioner's share of the gross production of oil from its operations was 21,102.77 barrels and petitioner had a gross income from its oil well operations of $29,168.46, and other income amounting to the sum of $892.53. Exclusive of depreciation and depletion and exclusive also of expenses incurred by *362 petitioner in shooting with nitroglycerine the producing sands in wells drilled by petitioner and cleaning out the same, petitioner had deductible operating expenses incurred during the year 1927 in the operation of said wells amounting to the total sum of $8,657.18, and in addition thereto petitioner paid taxes during said year to the State of Montana and County of Toole amounting to the total sum of $837.46, and in addition thereto petitioner paid interest upon indebtedness arising out of its business in the further sum of $552.76.
During the year 1927 petitioner*1657 drilled three wells on its oil lease in Toole County, Montana, being wells numbered 6, 7 and 8, all of which said wells were commercial producing wells, and petitioner expended in the drilling of said three wells to the producing sand and the equipment of same the sum of $25,026.32. Forty per cent thereof consisted of expenditure for wages, fuel, repairs, hauling, etc., incurred in drilling said wells in connection with the development and exploration of the property.
Immediately after the three wells were drilled to the producing sand, and before the same were placed on production, petitioner expended in said year the further sum of $1,676.82 in causing the producing sand in said wells to be shot with nitroglycerine and cleaning out the same for the purpose of improving the production thereof. In reporting its income for the year 1927 petitioner deducted the above mentioned sum of $1,676.82 from its gross income as an operating expense and respondent in his notice of deficiency disallowed said item as an operating expense and charged same to the capital account of petitioner. In addition to the above expenses, petitioner expended for additional necessary equipment on said lease*1658 the further sum of $234.90. On January 1, 1927, the estimated recoverable oil content from said lease was 290,637.14 barrels and the number of barrels recovered by petitioner as its share of the oil produced in 1927 was 21,102.77 barrels.
During the calendar year 1928, petitioner's share of the gross production from its oil well operations was 27,535.75 barrels. Petitioner had a gross income therefrom of $46,773.13 and other income amounting to the further sum of $392.10. Exclusive of depreciation and depletion and exclusive also of expenses incurred by petitioner in shooting with nitroglycerine the producing sands in wells drilled by petitioner and cleaning out the same, petitioner had deductible operating expenses incurred during the year 1928 in the operation of said oil lease amounting to the total sum of $8,264.95, and in addition thereto petitioner paid taxes during said year to the State of Montana and County of Toole, amounting to the total sum of $1,015.29. In addition thereto petitioner paid interest on indebtedness arising out of its business amounting to the further sum of $1,526.88.
*363 During the year 1928 petitioner drilled four wells on its oil lease*1659 in Toole County, Montana, being wells numbered 9, 10, 11 and 12, all of which said wells were commercial producing wells. Petitioner expended in the drilling of said four wells to the producing sand and the equipment of same the sum of $31,816.64. Forty per cent thereof consisted of well equipment expenditure and 60 per cent thereof consisted of expenditure for wages, fuel, repairs, hauling, etc., incurred in drilling said wells in connection with the development and exploration of the property. Immediately after said wells were drilled to the producing sand, and before the wells were placed on commercial production, petitioner expended in said year the further sum of $2,775.85 in causing the producing sand in said wells to be shot with nitroglycerine and in cleaning out the same after such shot, for the purpose of improving the production of the wells. Petitioner also expended in said year the further sum of $1,659.91 for pulling rods and tubing, and recupping the working barrels and cleaning out wells drilled in the same and previous years in order to partially restore such wells to their original production. Such pulling of rods and tubing, and recupping of working barrels*1660 and cleaning out of said wells were made necessary by reason of the fact that in the operation of oil wells the cups wear out and have to be replaced from time to time, usually about every three or four months, and the pulling of tubing is necessary in order to clean out the well and remove the sand that filters in to the uncased portion of the well. Petitioner during said year also expended the further and additional sum of $838.07 for the purpose of pulling the rods and tubing, shooting with nitroglycerine and cleaning out well No. 4, thereby restoring said well to larger production than it had previous to such cleaning, but which production was less than its original production when first drilled. The three items last mentioned constitute a total of $5,273.83. In reporting its income for the year 1928, petitioner deducted said sum of $5,273.83 from its gross income as an operating expense and in his notice of deficiency respondent disallowed this sum as an operating expense and charged same to petitioner's capital account. The petitioner's share of the estimated recoverable oil content from said lease on January 1, 1928, was 269,534.37 barrels and during the year 1928 the number*1661 of barrels recovered by petitioner as its share of oil produced was 27,535.75.
On the 23d day of February, 1929, petitioner paid to the collector of internal revenue at Fargo, North Dakota, the sum of $84.38 and on November 8, 1929, petitioner paid to the said collector the further sum of $1,459.81. Both of these payments were made pursuant to demands of the collector as being due and owing from petitioner to *364 the Government of the United States on account of income tax for the years 1926, 1927 and 1928.
All of the outlay and expenditures incurred by petitioner in the drilling and equipment of oil wells hereinabove referred to during the years 1926, 1927 and 1928 were capitalized by petitioner and charged to capital account, except the above mentioned items of $3,058.41 in 1926; $1,676.82 in 1927; and $5,273.83 in 1928. The productive life of all producing wells, the cost of which was capitalized as above set forth was more than one year.
In the reports of income tax made by petitioner for the years 1926, 1927 and 1928 petitioner claimed a deduction for depreciation upon said entire capital account, but respondent disallowed any depreciation upon that portion*1662 of the costs of drilling and equipping the wells, which consisted of expenses paid for wages, fuel, repairs, hauling, etc., in connection with the exploration of the property, and held that the portion of well development costs which consisted of such expenses upon which petitioner was not entitled to claim depreciation amounted to 60 per cent of the total cost of said wells, and respondent disallowed any deduction for depreciation upon said 60 per cent of well development cost.
Petitioner's books of account, consisting of journal, cash book, ledger and daily run book, were kept in the usual manner and entries made therein in the ordinary course of business.
OPINION.
VAN FOSSAN: The first issue here presented was fully considered by the Board in , where we held that expenditures for fuel, wages, repairs, hauling, etc., in connection with the drilling of oil and gas wells are capital expenses recoverable through depreciation rather than depletion. The contention of petitioner as to this group of expenditures is sustained.
The second item presented is the cost of shooting certain wells, petitioner here contending that the*1663 item should be charged to operation expenses rather than capital and in support of its position points to article 242, Regulations 74. We see no parallelism between the situation in the instant case and that of the development of an ore mine, which is the subject of article 242. Nor are we impressed by petitioner's attempt to distinguish these costs from other capital expenditures. In our opinion the shooting of an oil well is clearly one of development, preliminary to operation as a producing well and the costs of this operation should be capitalized. Indeed, the stipulated fact is that the shooting of the wells occurred "before the same were placed on production." The respondent is affirmed in his treatment of this item.
*365 The third issue submitted is the classification of expenditures incurred in pulling rods and tubing, recupping the working barrels and cleaning out wells to restore such wells to original production. It is stipulated that these operations occur after a well is in commercial production and are required periodically. In our opinion these expenditures are related to operation rather than development. They are normal current expenses of producing*1664 oil from proven wells and should be charged to operating expense. Cf. ; .
Decision will be entered under Rule 50.