*4282 Losses in oil transactions allowed in part and disallowed in part.
*1209 On motion made and granted these proceedings were consolidated. Each proceeding involves the redetermination of a deficiency in income taxes for the year 1920, in the amount of $973.37. The only error alleged is that petitioners were denied the right to deduct from their gross income for 1920, certain losses alleged to have been sustained by them in that year.
FINDINGS OF FACT.
Petitioners, C. H. Goodwin and Mollie Goodwin were, during the year 1920, husband and wife and resided at Stephenville, Tex.
In the year 1918, petitioners acquired at a cost of $1,800, a royalty interest in what are termed the Cooper-Hoffman oil leases. These leases were granted on what is known as the Cooper farm and the Hoffman farm. At a time not shown and prior to the drilling of the wells on the Cooper and Hoffman tracts hereinafter referred to, a well came in which is known as the Ranger-Mexico well. The Cooper farm adjoined on the east the property*4283 on which the Ranger-Mexico well was sunk. The Hoffman farm was east and adjoining the Cooper farm. Two wells were sunk on the Cooper farm and one or two were sunk on the Hoffman farm. All these wells were dry. The machinery was then removed and the Hoffman farm was thereafter used as a tank farm. The first well was drilled on these tracts in 1918. The last well was completed in either 1919 or 1920.
About the same time that petitioners acquired their royalty interest in the Cooper-Hoffman lease, they acquired a royalty interest on what is known as the Falls oil lease, at a cost of $1,000. One well was drilled on this property and others near it. All these wells came in dry. The last well was drilled in 1920. It was then demonstrated that the tract leased was dry.
Petitioners, together with other persons, purchased in 1919 what is termed the Keith oil lease, at a net cost to petitioners of $3,750. A part interest in this lease was conveyed to a third person in consideration that he would sink a well. The well was drilled on this *1210 property in 1919 or 1920. This well came in dry and was abandoned in 1920, at which time the drillers removed their machinery*4284 from the property. The lease was then abandoned and title lapsed in 1920. No rent was ever paid. Later, a release was executed to the owner for the sole purpose of clearing the title to the property.
Petitioners acquired an interest in an oil lease on what is known as the Edna Hill Block, at a cost of $3,000. This tract was 20 miles from oil-producing territory. A well was sunk on this property in the latter part of 1919 which turned out dry. No rentals were paid on this lease and it was abandoned as worthless in 1920.
In 1919, petitioners purchased an interest in an oil lease known as the Barber or Barbee lease at a cost of $1,000. This lease was on land near the Edna Hill Block property. No well was drilled on this property. The lease was abandoned as worthless soon after the well on the Edna Hill Block property came in dry. No rent was paid on this property for the year 1920.
In 1920 petitioners acquired in consideration of $8,000, an interest in an oil lease on what is known as the Thorpe Farm at Leray, Tex. Petitioners and the other owners of the lease entered into a contract with the Virginia Company to sink a well on the leased property. The well was drilled*4285 in 1920 and came in dry. The Virginia Company at once removed its tools but left its rig standing on the property for several months thereafter. The lease was abandoned as worthless in 1920.
At a cost not shown, petitioners acquired an interest in an oil lease termed the M. F. Reed lease. Wells were drilled in 1918 or 1919 in the vicinity of the property. These wells came in dry. The lease was abandoned in 1920.
At a cost of $3,200 petitioners acquired in 1920, an oil lease on certain lands in Loving County, Texas, from L. M. White. The description of the property in the lease was defective and while data was being secured for its correction, and during 1920, White sold the larger portion of the land to other purchasers. These sales were made in 10-acre lots which were erratically distributed over the property leased. When petitioners discovered this they did not put their lease of record and thereupon abandoned the project and determined their investment to be worthless. About this time White got into trouble with the Federal authorities. White was insolvent and a suit against him would have been futile.
At a cost of $1,500, petitioners acquired in 1918 an interest*4286 in an oil lease known as the Brooks' lease. No rental was paid for 1920, on this lease and it is not shown whether rent was paid for the year 1919.
At a cost of $800, petitioners acquired a royalty interest in what is known as the Shook royalty.
*1211 In 1919, petitioners and others purchased what is known as the Lacey oil lease on land in Eastman County, Texas. Petitioners paid $5,000 for their interest. At the time of their purchase an offset well was being drilled east of the property and this well came in dry and indicated that the property leased was also dry. Petitioners and another owner determined to let the lease lapse in 1920, but in the early part of 1921 another owner paid the rent due for that year. Petitioners, upon request, reimbursed the owner so paying to the extent of their share of the rental.
OPINION.
MILLIKEN: The only question involved in this case is whether petitioners are entitled to deduct, as losses for the year 1920, certain oil investments which they claim became worthless in that year. Petitioners introduced only two witnesses, petitioner C. H. Goodwin and J. E. Hickman. *4287 The memory of C. H. Goodwin was quite faulty and we have been required to rely largely on the testimony of Hickman. The vital question is in what year petitioners' alleged losses were sustained. The burden rests upon petitioners to establish in what year the losses occurred, and where they have not supplied this testimony, the Board is unable to supply it for them. Cf. .
Petitioners' claim for deduction in 1920, of losses incurred in their investment in the royalty interest in the Cooper-Hoffman leases must be denied since the evidence shows that it was known that there was no oil in this tract when the last well was completed. The testimony as to this date is to the effect that the last well was sunk either in 1919 or in 1920; that is, the evidence shows that the loss may have occurred in 1919. This evidence is not sufficient to meet the burden of proof which rests upon petitioner.
The facts found with reference to the Falls royalty clearly show that petitioner suffered a deductible loss in 1920, and the same is true as to the investments in the Keith lease and the Edna Hill Block lease.
*4288 We are of the opinion that the facts of this proceeding with reference to the lease on the Thorpe farm and the Barber or Barbee lease, bring it within the rule laid down in , and that petitioners are, therefore, entitled to deduct their losses in this transaction in the year 1920.
Respondent's action in denying a deduction of any loss arising from the M. F. Reed lease is approved, for among other reasons it does not appear what the cost of that lease was to petitioner.
*1212 When L. M. White sold to innocent purchasers a large part of land leased to petitioners, he breached his contract with them and the lease was worthless. Petitioners were left with only a right of action for damages. The evidence clearly shows that to bring such an action would have been futile. This deduction is allowed.
The only claim made by petitioners with reference to their loss in the Brooks lease investment is that the lease lapsed by reason of failure to pay rent. but whether rent was paid for 1919, does not appear from the evidence; neither does it appear whether the investment was worthless or was ascertained to be worthless*4289 in any year. Respondent's action as to this item and as to the Shook royalty is approved.
While it is shown that petitioners and one other owner had determined to forfeit the Lacey lease in 1920, and not to pay rent for the year 1921, it appears that another owner of the lease did pay this rent for the year 1921, and upon request petitioners did contribute their share. Respondent's action in respect to this lease is approved under the authority of .
Judgment will be entered on 15 days' notice, under Rule 50.