The Board of Tax Appeals sustained a determination by the Commissioner that certain intangible drilling and development costs were not deductible from taxpayers’ gross income as ordinary and necessary business expenses under Article 23(m)-16 of Treasury Regulations 94, Section 23(a) Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Acts, page 827. The findings and well-reasoned opinion of the Board are reported in full, Hardesty v. Commissioner, 43 B.T.A. 245, and for this reason it is not necessary to give a detailed review of the facts and history of the case.
Taxpayers seek a deduction from gross income, predicating their case solely upon the provisions of Article 23(m)-16 of Treasury Regulations 94. The drilling and development costs dealt with by this article are those incurred by a taxpayer in connection with the development of his own property or lease. The option granted by the regulation does not extend to costs incurred under turnkey contracts, or to costs which are a part of the costs of a. completed well which has by agreement *845been drilled quid pro quo as the purchase price of the property or an interest in it. The regulation was not intended to and does not apply to costs incurred in the drilling of oil wells on the lands of others, or to costs incurred in connection with the drilling of wells as the purchase price of or as consideration for an interest in the lands of others. As to the scope of Article 23(m)-16 also see Commissioner v. Ambrose, 5 Cir., 127 F.2d 47, decided April 8, 1942.
The ultimate question for decision, therefore, is whether or not the oil wells drilled in this case were drilled as consideration for the assignment of the undivided interests in the oil properties; for if they were drilled as consideration for the assignment, the drilling and development costs are not deductible under the regulation but must be treated as a capital expenditure. The Board found that the drilling of these wells was part of the consideration for the assignments of the interest in the leases, and this court is without authority to disturb that finding since it is supported by substantial evidence.
The petitioners were members of a partnership which acquired interests in two leases. The instrument by which three-fourths of the working interest in the Richter “A” Lease was acquired provided that as part of the consideration for the assignment the assignee would drill and equip an oil well on the property at its sole cost and expense, and that if the well produced as much as one hundred barrels of oil per day, the assignee would drill and equip a second well upon the same terms and conditions. Other provision was made for operation of the property, cost of operation to be paid seventy-five per cent by the assignee and twenty-five per cent by the assignor. That the agreement and obligation to drill the wells was intended as con-' sideration for the assignment of the three-fourths interest in the lease is, we think, made clear by the terms of the instrument itself which provides: “5. As part of the consideration for this assignment and the rights hereby granted, Assignee covenants that it will immediately commence the drilling of a well on the tract of 20 acres last above described, and continue the drilling thereof with due diligence and in a workmanlike manner to the present pay horizon, which is found at approximately 2650 feet, furnish all casing, tanks, flow lines and separator, if necessary, and do all things necessary to complete said well into the tanks as a turnkey job. Assignee further agrees that if said well, when completed is capable of producing as much as one hundred (100) barrels per day, after a reasonable test thereof, it will drill a second well on said 20-acre tract, on the same convenants and agreements as are here made with respect to the first well above mentioned.” (Italics ours.)
Without more, this plain provision in the assignment amply supports and sustains the finding of the Board that the drilling of the wells wás consideration for the assignment. Moreover, there is no evidence contradicting or attempting to explain away this clear provision in the instrument.
The Richter “B” Lease transaction was evidenced by a “Development Contract and Escrow Agreement” under which the Richter “B” Lease was placed in escrow to be delivered “in consideration of the covenants and agreements set out in said oil and gas lease”. The lease and escrow agreement were to be considered and construed together, and it was provided that wells would be drilled and that the lease would not be delivered until the first well had been completed. Under the terms of the escrow agreement $10,000 was placed on deposit with the escrow agent as a guaranty for full performance of the covenants and agreements. Certainly, these documentary facts support and sustain the Board’s findings.
The principles announced in the cases relied upon by the Board are pertinent here and lend weight to its opinion. See State Consolidated Oil Co. v. Commissioner, 19 B.T.A. 86, affirmed 9 Cir., 66 F.2d 648; and United States v. Sentinel Oil Co., 9 Cir., 109 F.2d 854, 856, certiorari denied 310 U.S. 645, 60 S.Ct. 1095, 84 L.Ed. 1412, where there was a stipulation that drilling of wells was “the consideration for the transfer”. Here we have no such stipulation, but we do have the instruments of assignment and the Board’s specific finding on the point. Furthermore, we think that the decision of the Board is legally and logically sound, with or without reliance on these cases.
The findings of the Board are supported, if indeed not compelled, by the record evidence, and its conclusions and application of the law are correct.
*846The petition is denied and the decision of the Board is affirmed.