(dissenting).
I am of the opinion that plaintiff is entitled to recover only $8,420.21 resulting from an additional deduction for 1926 of $76,614.-03 for depreciation of camp buildings, etc., well equipment, and materials, as set forth in finding 13. This deduction appears to have been disallowed by the commissioner for lack of proper segregation of certain costs. I think the development costs, totaling $18,907.74, finding 15, whieh were early and preliminary costs incident to the leases and preliminary to drilling operations, paid out during 1922 to 1924, inclusive, for expenses and for interest and taxes, and charged on its books as depreciation on equipment, furniture, and fixtures; and the drilling costs, amounting to $71,321.21, which amount is exclusive of the costs of all casings and the placing of same, the costs of all tools, machinery, and equipment used in such drilling and the costs of erecting or installing such tools or equipment, are comprehended in the depletion allowance for exhaustion of the oil supply and may not, therefore, bo included in the amount to be used in determining the reasonable allowances for depreeia.tion. An oil well, that is, the hole in the ground, like real estate, is not naturally subject to depreciation through wear and tear. Its usefulness is exhausted, as the oil is removed, but exhaustion is comprehended in the allowance for depletion. In the ordinary ease the statute provides for a reasonable allowance for “the exhaustion, wear and tear of property used in the trade or business,” but in the ease of oil wells the statute, section 234 (a) (8) of the Revenue Act of 1926, 26 USCA § 986 (a) (8), in providing for a deduction for depletion and for wear and tear, states that: “In the ease of * * * oil and gas wells * * * a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in eacli 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.” The costs which may be included in the amount to bo used for the purpose of computing the allowance for depreciation must be costs in relation to physical property which is subject to depreciation through wear and tear as distinguished from exhaustion. The deduction for depletion is a special application of the genera], rule allowing a deduction for exhaustion. The depreciation charge represents the reduction during the year of the capital assets through wear and tear of the plant used. The depletion is likened to the using up, i. e., exhaustion, of raw material in a manufacturing process. The terms “do-*860pletion” and “depreciation” are mutually exclusive; together' they are the equivalent of the phrase “exhaustion, wear, and tear”; in the ease of an oil well, however, the exhaustion . is described as depletion. In view of the particular language of section 234 (a) (8) relating to oil and gas wells, I think exhaustion was intended to be included in the depletion allowance of 27% per cent, of the gross income from the property during the taxable year, and only compensation for wear and tear of physical property allowed in addition thereto. The Regulations3 prescribe this rule for the administration of the statute. They are expressly authorized and impliedly approved by Congress. They are reasonable and essential to the practical administration of the statute' and are valid. Brewster v. Gage, 280 U. S. 327, 335, 50 S. Ct. 115, 74 L. Ed. 457; Faweus Machine Co. v. United States, 282 U. S. 375, 51 S. Ct. 144, 75 L. Ed. 397.
Reg. 45, art. 223; .62, art. 223 ; 65, art. 225; imd, 69, art. 223.