This is a petition to review a decision of tbe Board of Tax Appeals which rejected petitioner’s claims that be was entitled, under section 214(a) (10) of tbe Revenue Act of 1921, 42 Stat. 241, to deductions from bis net income during tbe years 1921 and 1922 for depletion of an oil and gas lease based on tbe fair market value thereof at tbe date of discovery of oil, and held him liable for deficiencies assessed by tbe Commissioner of Internal Revenue upon bis net income during those years without making any allowance for such depletion.
Tbe above-cited section of tbe 1921 Revenue Act provides that in computing net incomes derived from oil and gas wells a reasonable allowance shall be made for depletion where tbe fair market value of tbe property is materially disproportionate to tbe cost, tbe depletion allowance to be based upon such value at tbe date of discovery or within thirty days thereafter, and to be equitably apportioned between tbe lessor and lessee. Tbe lease in question was acquired during 1919 in unproven territory by a partnership composed of petitioner and several others, including George O. Baird. In August, 1919, tbe partnership drilled a well and discovered oil. Tbe Commissioner of Internal Revenue recognized its right under the Revenue Act to a discovery revaluation, and ascertained the unit for depletion purposes to be $1.3859 per barrel. In December 1919 Baird, who for convenience held the title in bis name, acting for himself and his associates, contracted to sell the lease to one Flannery foro $2,500,-000. Flannery made a net cash payment of $350,000, which was duly returned by members of the partnership for income tax purposes; but failed to make any of the deferred payments. Because of Flannery’s default, at the suit of Baird, who remained in possession, a state court on November 9,1921, entered a judgment ordering the resolution or annulment of the contract with Flannery, the judgment to become effective only upon restitution to Munhall, Flannery’s assignee, of the $350,000 cash payment with interest from the date thereof. On November 16, 1921, Baird and the Gulf Refining Company entered into a contract upon Which the rights of the parties depend. That contract is copied in full in the findings of fact by the Board. 17 B. T. A. 933. In substance it provides that the Gulf Company shall take possession of the lease, and at its own expense operate wells, maintain production so long as oil may be produced in paying quantities, pay all taxes, retain 40 per cent, of the oil produced, out of which it shall pay a % royalty to the original lessor, and a V2Í royalty to Baird for three years; declares that the Gulf Company has lent to Baird $350,000 on the sole security of the lease and without any personal liability on bis part, that, to secure the repayment of that sum, Baird mortgages all bis interest in the lease, and pledges all the oil that may be produced except the royalty oil above mentioned; but notwithstanding the mortgage and pledge the Gulf Company binds itself to deliver to Baird 60 per cent, of the oil produced until the expiration of thirty months, or until be shall have received therefrom $325,000. Upon the happening of either event, the Gulf Company is given the right to apply such 60 per cent, of the oil to the repayment of the loan without interest. Baird agreed that when the aggregate of these two amounts, or $675,000, bad been realized from the proceeds of oil be would “sell, assign, convey and deliver to the said Gulf Refining Company of Louisiana the entirety of said mineral lease,” that .company to continue to operate the lease so long as it was able to produce oil therefrom in paying quantities, and to pay to him a Vm royalty for three years and thereafter a Vs2 royalty. Tbe contract further declared that Baird bad executed an assignment to the Gulf *944Company of 3his entire interest in the lease to be deposited in escrow until the latter had complied with its obligations, and then to be delivered to it. Upon the execution of that contract the Gulf Company paid $350,000 to Munhall, took physical possession of the lease, and complied with all its obligations; and the deed deposited in escrow was later delivered to it. Each member of the Baird partnership, including petitioner, returned as income in 1921 his proper proportion of 60 per cent, of % of production, deducting depletion based upon discovery revaluation as previously allowed by the Commissioner; and each of them made a similar return for 1922, deducting discovery depletion based upon the 1919 allowance per unit or barrel.
The decision of the Board was based upon the conclusion that the Gulf Company’s contract, which petitioner contends was a mortgage of the lease and a pledge of the oil, or a sublease, amounted in law to a sale of the lease, and the Board thereupon held that • the initial payment of $350,000 made by the Gulf Company constituted taxable income in 1921, and that petitioner was not entitled to claim deductions for depletion as to 60 per cent, of the oil produced under the contract and sold during the taxable years 1921 and •1922.
We are of opinion that the contract in question did not provide for a mortgage or pledge. Either of such instruments presupposes a promise or an obligation to pay, and the mortgagor or pledgor gets his property back upon paying the secured debt. But here Baird assumed no liability, and it was not intended or contemplated that he could ever again claim title, possession, or control of the lease. The Gulf Company was in no sense a creditor, but discharged a judgment lien upon the property as a condition precedent to the right to take possession under the contract. It agreed to be liable for interest to Munhall, but to forego interest for itself, thus indicating that it paid Munhall on its own account and not for Baird. Nor in our opinion was there any sublease. The argument for a sublease is based upon Baird’s right to royalty, which it is, said was rent; but that right existed after as well as before the delivery of the deed placed in escrow. Clearly, rent was not contemplated after delivery of the deed, and no different right was given to Baird before its delivery. The royalty to Baird formed part of the purchase price paid for his interest. Waller v. Commissioner Internal Revenue (C. C. A. Fifth Circuit, opinion filed May 16, 1930) 40 F.(2d) 892. In that ease we considered Smith v. Sun Oil Co., 165 La. 907, 116 So. 379, relied on by petitioner, and held that in Louisiana royalty was not always to be considered as rent. And Wilkins v. Nelson, 155 La. 807, 99 So. 607, also holds that royalty may form a part of the consideration paid for mineral rights. We are unable to agree with the Board that Baird made a sale of the lease and received therefrom $350,000 upon which he became liable in 1921 for an income tax. Baird was not obliged by the judgment of the state court to pay off the Munhall lien. It is true that only by doing so could he get a clear title, but that lien stood against the property and was taken up by the Gulf Company without any right to get it back from Baird in the absence of an agreement, and, as we have already stated, the contract provided, not that the lien should be discharged by Baird, but that the Gulf Company should be reimbursed only out of oil which it took from the wells. The contract declares that Baird had mortgaged the lease and pledged the oil, but it was put jn that form apparently for the purpose of making it appear that there had been no sale in order that Baird might not be held liable for income tax at a higher rate of taxation. As it appears to us, what Baird did was to make an- assignment of his interest in the lease to the Gulf Company subject to the lien in favor of Munhall, and to secure from the Gulf Company an agreement to pay him for his interest the sum of $325,000 and a royalty. The intention- of the parties is not to be controlled by-the use of the words “loan,” “mortgage,” and “pledge,” but is to be arrived at from a consideration of the whole instrument. Heryford v. Davis, 102 U. S. 235, 26 L. Ed. 160. Although the Gulf Company did not in terms agree to pay a purchase price of $325,000 except out of the proceeds of oil which it sold, it did agree to operate the wells and set apart 60 per cent, of the oil until that sum was fully paid, after which it had the right to demand and receive the deed which had been placed in escrow. Its obligation went so far as to pay the money or to exhaust the lease. In our opinion this was a sufficient agreement to pay, especially when it is borne in mind that it was Baird’s intention to make the contract assume the form of a mortgage or pledge. The parties were not jointly interested in the lease, for, if that were so, Baird’s interest would have remained after as well as before the $325,000 had been paid. The Gulf Company only was interested in the lease, and Baird’s only object was to secure payment of the purchase price. The con*945tract, so far as Baird was concerned, was an executed one, and the Gulf Company did not need a deed but could have rested upon its title under the contract upon performance of its obligations.
The conclusion is that petitioner is not liable for income tax on the $350,000 paid in 1919, by the Gulf Company to Munhall, but that he is liable for income tax on tie amounts received as payments on the $325,000 in 1921 and 1922 without allowance for depletion.
The petition for review is granted, and the cause remanded for further proceedings not inconsistent with this opinion.