*885 Petitioner acquired property in Nevada upon which were "dumps" composed of broken ore-bearing rock taken from mines located on adjacent property. At the time the "dumps" were placed on petitioner's property they were considered worthless. As a result of improvements in extracting methods the contents of these dumps were milled by petitioner at a profit. Held, these "dumps" are not mines and petitioner is not entitled to percentage depletion under sections 23(m) and 114(b)(4) of the Acts of 1936 and 1938. Atlas Milling Co. v. Jones, 115 Fed.(2d) 61, followed; Kennedy Mining & Milling Co.,43 B.T.A. 617">43 B.T.A. 617, distinguished.
*242 These proceedings, consolidated for hearing and decision, involve deficiencies determined by respondent in petitioner's income tax for the years 1936 and 1938 in the respective amounts of $3,625.45 and $676.59. The petitions herein put at issue that part of the deficiencies which arises by reason of respondent's refusal to allow petitioner percentage depletion*886 under the provisions of section 114(b)(4) of the Revenue Acts of 1936 and 1938, 1 with respect to income derived by petitioner from the extraction of ores from "dumps" composed of broken rock taken from mines adjacent to petitioner's property.
FINDINGS OF FACT.
The petitioner is a corporation organized under the laws of the State of California, with its principal office at San Francisco, California. It filed its income tax returns for the calendar years 1936 and*887 1938 with the collector of internal revenue for the first district of California. On or about July 1, 1933, petitioner acquired by purchase from the Bullion Gold & Silver Mining Co. property known as the American Flat property, located near Virginia City, Nevada. At all times during the years 1936 and 1938 petitioner was the owner in fee of said property.
On its income tax returns the petitioner elected to have its depletion allowance computed on the basis of percentage depletion. During the year 1936 the petitioner derived income from the processing of certain dump ores, located on the American Flat property, known as the Yellow Jacket and Belcher Dumps, in the amount of $71,211.40. In arriving at the deficiency involved for the year 1936, the respondent did not include this amount in depletion net income for purposes of computing percentage depletion under section 114(b)(4) of the Revenue Act of 1936. During the year 1938 petitioner realized income from the processing of ores in these dumps in the amount of $2,924.12. Respondent did not allow petitioner any deduction for percentage depletion for said year.
The dumps, referred to above, were created during the period between*888 1872 and 1898. None of the ore materials in these dumps had even been milled, nor had any attempt been made prior to their *243 purchase by petitioner to extract any minerals from them. At the time they were created, there were no mills for processing located on the American Flat property. The ore materials constituting these dumps could not have been milled at a profit at the time they were deposited in the dumps.
On the American Flat property there is located only one shaft for the conduct of mining operations, known as the Overman shaft. However, on property adjacent to the American Flat property, there were located shafts known as the Yellow Jacket, Crown Point, Kentuck, and Belcher. None of these shafts was located on the property purchased by petitioner. All of the ore materials in the dumps in question were extracted from the mines known as Yellow Jacket, Kentuck, Crown Point, and Belcher. The owners of these mines had the privilege of dumping their waste ore materials extracted from their mines on the American Flat property. The American Flat property prior to 1907 was owned by the Overman Mining Co. None of the ore materials from the Overman shaft were placed*889 in the dumps in question. This company had a separate dump of its own near its own shaft, but at the time the ore materials from the other mines were dumped on this property, it was considered that the Overman Mining Co. thereby became the owner of these materials.
These materials were extracted from the mines referred to by blasting. They were then hoisted to the top of the shafts and dumped into bins, and then carried out to the dumps on iron cars drawn by mules.
In 1907 the dumps were several hundred feet high, with the coarser rock at the bottom and the finer ore materials at the top. As a rule, the coarse rock rolled down to the bottom of the dump leaving the finer materials on top. When petitioner began removing the ore materials in the dumps, it was discovered that there was no segregation of the waste ore materials and the commercial ore materials. There were various layers in the dumps, however, which showed that the finer ore materials remained on the higher part of the dumps.
Petitioner erected a mill in 1934 about 2,000 feet from the dumps. At first it used the flotation process for removing the mineral content in the ore materials constituting the dumps. *890 Thereafter, the petitioner resorted to the cyanide process for this purpose. The ore materials were removed from the dumps to the mill for processing by use of a power shovel. They were then dumped into trucks, which conveyed the materials to the mill.
The dumps in question did not constitute a mine, and none of the income derived by petitioner from the processing of ore materials located in the dumps during the years 1936 and 1938 constituted income from a mine for purposes of percentage depletion under the provisions of section 114(b)(4) of the Revenue Acts of 1936 and 1938.
*244 OPINION.
KERN: The question which is here presented for decision is whether the "dumps" which were deposited upon petitioner's premises from adjacent mines and from which ore was extracted can be considered as a mine within the meaning of section 114(b)(4), set out above, and section 23(m), 2 which sections appear as quoted in the Revenue Acts for both 1936 and 1938.
*891 In (certiorari denied, ), the taxpayer, pursuant to its rights under a lease contract, went upon certain lands and removed crushed rock which constituted the residue from mining and milling operations carried on by the owners of the premises. By reason of a new extraction process it had become profitable to remill and retreat such "tailings" or residue. This the taxpayer did. It was held that taxpayer was not entitled to percentage depletion. In its opinion the court said in part:
A "mine" is an excavation in the earth from which ores, coal, or other mineral substances are removed by digging or other mining methods. In its broader sense it denotes the vein, lode, or deposit of minerals. Mining connotes the removal of minerals from a natural deposit. It does not embrace the reworking of mineral dumps artificially deposited from the residue remaining after the ore has been milled and concentrates removed therefrom. So. . In the case last cited the court said:
*892 The tailings severed and removed from the mining claims, changed in character, placed on other and separate lands and having an ascertained and adjudicated value of their own, in our opinion, constituted a unit of property entirely apart from the mine from which they had been taken. See .
Ores when severed from their natural deposit become personal property. Trover and conversion will lie for their wrongful taking.
*245 While tailings deposited on the surface of land may become appurtenant to the land, they in no true sense become a mine.
We are of the opinion that the word "mines" as used in, § 23, supra, is limited to natural deposits and does not include a tailings dump deposited on the surface of land, consisting of the residue of ore that has been severed and milled.
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* * * Here, Atlas [the taxpayer] owns no economic interest in the mine from which the minerals were severed. To entitle it to depletion we would have to hold that the tailings, not a natural deposit but ore-bearing rock artificially deposited on the surface of the ground, constitutes a mine within the meaning of § 23, supra. We*893 are of the opinion that it may not be so regarded. * * *
Petitioner here seeks to distinguish this proceeding from that case. It argues that there the court had before it a problem having to do with "tailings" made up of the residue of rock left after it had once been milled, whereas here the dumps were made up of broken rock which had never been milled and within which the ore was still deposited.
We consider this difference to be immaterial. The dumps of petitioner were of "ore-bearing rock artificially deposited on the surface of the ground", and the petitioner had no economic interest in the mines from which such rock was severed. These are the determinative facts which bring this proceeding within the reasoning of See also .
The distinction between this proceeding and , is obvious. In that case the "tailings" were from ore-bearing rock severed from mines owned and operated by the taxpayer. Under those circumstances, we said:
* * * The economic interest of this petitioner in the tailings and in the minerals*894 to be extracted therefrom was identical with the interest it had maintained through its ownership of the mine from beginning to end of the extractive process; and when it finally received the proceeds of the minerals contained in the tailings it received income from the contents of the mine to exactly the same extent as the income it had previously received from the earlier and more rudimentary refining process. * * *
Deductions for depletion are matters of legislative grace, , and none more so than deductions on account of percentage depletion. Since the petitioner has not brought itself clearly within the act, he can not claim the deduction sought.
At the hearing herein the parties entered into certain stipulations with regard to petitioner's income for the years in question to which consideration shall be given by counsel in preparing recomputations of petitioner's tax liability in accordance with this opinion.
Decision will be entered pursuant to Rule 50.
Footnotes
1. SEC. 114. BASIS FOR DEPRECIATION AND DEPLETION.
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(b) BASIS FOR DEPLETION. -
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(4) PERCENTAGE DEPLETION FOR COAL AND METAL MINES AND SULPHUR. - The allowance for depletion under section 23(m) shall be, in the case of coal mines, 5 per centum, in the case of metal mines, 15 per centum, and, in the case of Sulphur mines or deposits, 23 per centum, of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property. * * * ↩
2. SEC. 23. DEDUCTIONS FROM GROSS INCOME.
In computing net income there shall be allowed as deductions:
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(m) DEPLETION. - In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. In any case in which it is ascertained as a result of operations or of development work that the recoverable units are greater or less than the prior estimate thereof, then such prior estimate (but not the basis for depletion) shall be revised and the allowance under this subsection for subsequent taxable years shall be based upon such revised estimate. In the case of leases the deductions shall be equitably apportioned between the lessor and lessee. In the case of property held by one person for life with remainder to another person, the deduction shall be computed as if the life tenant were the absolute owner of the property and shall be allowed to the life tenant. In the case of property held in trust the allowable deduction shall be apportioned between the income beneficiaries and the trustee in accordance with the pertinent provisions of the instrument creating the trust, or, in the absence of such provisions, on the basis of the trust income allocable to each. For percentage depletion allowable under this subsection, see section 114(b), (3) and (4).) ↩