(specially concurring) :
If I were free to do so I would follow Judge Hutcheson’s dissent in Houston Farms on rehearing. 132 F.2d 861. The government’s fiction of attaching taxable incidence to delay rentals can easily confuse related issues. Oil and gas leases are basically no different from other contractual agreements- — ■ each has its quid pro quo. The manner of expressing a payment should not control its economic substance. The “selection bonuses” in the eases at bar were much more akin to a tax depletable payment made to obtain an oil lease than to a nondepletable payment made to delay the production of oil. In fact, oil production and lease development were taking place on some of the leases in question at the time such selection bonuses were paid.
The touchstone of the government’s position both in appellate argument and in its own regulation is that these selection bonuses were delay rentals because they could be avoided by abandonment. However, abandonment as a characteristic which would, in and of itself, determine taxation is a poor criterion. It is not indigenous solely to delay rentals; it may also appertain to tax depletable royalty payments — even a fixed-sum per-barrel royalty proviso — so long as the payment is to be made at a future date.
These selection bonuses were essentially payments for exercising an option to make a new “unless” lease to replace the initial time-limited tenancy, which, unless so replaced, unconditionally expired twelve months from its date. Allowing substance to control over form would bring me out in favor of reversing these cases-.