(concurring in the result).
There must be income before there can be a tax. Eisner v. Macomber, 252 U. S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570. Tho quality of tho interest owned by the taxpayer may help in determining whether there is income; but the tax is laid, not on property, but on income. If there is income, the tax cannot be defeated by directions to pay to others; nor is it escaped because it is not reduced to possession. During 1920 the wells here involved produced some oil, but all of the proceeds thereof were applied by the Ohio Oil Company to the cost of development, as tho contract provided. Were such proceeds income to Armstrong, or McMurray, his assignee? The Board of Tax Appeals held that the proceeds of oil, applied to the payment of tho cost of development, were not income to Armstrong. Armstrong v. Commissioner, 25 B. T. A. 928. The appellant disputes the correctness of this decision.
Tho proceeds of the oil are not constructive income, for sueh has been defined by the Regulations as income which has been “credited to the taxpayer without any substantial limitation or restriction as to the time or manner of payment or condition upon which payment is to he made.” Reg. 45, Art. 53, approved January 28, 1921. The limitation upon payment of the money here involved was absolute.
Appellant then contends that the proceeds of the oil taxed were expended on a capital improvement. The Commissioner deducted from the proceeds tho expenses of operation, but declined to deduct capital expenditures. The brief states: “In the instant case tho capital expenditures are the costs of development of tho properly, the drilling of the oil well which is analogous to the construction of a building on the ground.”
If the premise is sound, the conclusion follows. If a farm is rented on a share contract by which expenses'of harvesting are deducted before division, the landlord receives no income if the expenses exceed the proceeds from the crop; if there is an excess, and the landlord directs the tenant, either in the original contract or later, to build a house with the landlord’s share of the net profit, the net profit is income to the landlord. But is tho analogy between an unprofitable oil well and a building a fair one? A building is of value; an oil well that does not pay its own way is but a hole in the ground. The value of recoverable equipment is generally slight, and in this ease, on account of the location of the field, is negligible. The Commissioner has long recognized this. Reg. 45, Art. 223 (1921) provides that the cost of drilling nonproductive wells may he charged to expense, and not to capital account, at the option of the taxpayer. The Fifth Circuit Court of Appeals has held that “plainly it could not have 'been thought that any one was enriched by the bringing in of dry holes.” Bliss v. Commissioner, 57 F.(2d) 984, 986. The Fourth Circuit Court of Appeals has held that “if a worthless well is dug, the money spent in digging it may properly be considered as lost.” Island Petroleum Co. v. Commissioner, 57 F.(2d) 992, 995. An abandoned oil well is not a capital asset; it is a nuisance.
It is argued that while the well was an unprofitable one in 1920; it became profitable *846in 1924. No one in 1920 knew whether the well would ever pay out. The government, in this ease, properly argues that “Income taxes are based entirely upon the receipts and disbursements (whether on a cash ór accrual' basis) for the twelve months’ period of the taxpayer’s accounting.” Burnet v. Sanford & Brooks Co., 283 U. S. 359, 51 S. Ct. 150, 75 L. Ed. 383, sustains the point. When the taxpayer made his return for 1920, in 1921, this well could not be considered an improvement; he did not know, and ño one knew until 1924, whether it ever would be of value. Oil wells are nursed along for many years, with the vain hope that they will eventually pay out. At the dose of the taxable year, an oil well has not paid out; neither is it abandoned. Must it be treated as a productive well? Such a rule may be grossly unfair to the taxpayer, by requiring him to pay a tax on a profit he never realizes. The other rule is not productive of mischief to the government, for if the capital expenditure is charged to expense, it cannot thereafter be recouped through depreciation.
The rule adopted by the Commissioner here seems to be opposed to the principle announced in Burnet v. Logan, 283 U. S. 404, 413, 51 S. Ct. 550, 552, 75 L. Ed. 1143, In that case, a part of the purchase price of stock was a royalty to be paid on ore as it was recovered. It was held that such royalty was not income until it was paid. The court said: “When the profit, if any, is actually realized, the taxpayer will be required to respond. The consideration for the sale was $3,290,000 in cash and the promise of future money payments wholly contingent upon facts and circumstances not possible to foretell with anything like fair certainty. The promise was in no proper sense equivalent to cash. It had no ascertainable fair market value. The transaction was not a closed one. Respondent might never recoup her capital investment from payments only conditionally promised.”
And so here. In 1929, no one could possibly foretell whether the well would ever pay out. If it did not, appellee would have been taxed for income he never could and never did receive; he would have made a capital investment which he never could recoup; he would have paid the government $36,612.11 in taxes on an income represented entirely by a dry hole.
The government assumes, in its brief, that Armstrong was personally obligated to pay his share of the expense of development. If he was, the proceeds of the oil are taxable income, subject to the option conferred by Reg. 45, Art. 223, supra. But was Armstrong so obligated? The charges and credits appearing on the books of the Ohio Oil Company are evidentiary^ but not conclusive. Lucas v. North Texas Co., 281 U. S. 11, 13, 50 S. Ct. 184, 74 L. Ed. 668. The contract provides, in one place, that the Oil Company will “pay” the cost of the development; in another place it describes the cost as'“money so advanced.” It provides for reimbursement of such advances out of the oil produced, but does not provide that it must look solely to such proceeds for reimbursement. There is no provision that Armstrong shall be personally liable for any part of the development costs; nor is there a provision that he shall be held harmless therefrom. The controlling clause as to Armstrong’s liability, as I read the contract, is the one which provides that the Oil Company “shall charge the undivided forty per cent interest” of Armstrong with 401 per cent of the cost of development. The “forty per cent interest” refers to the leases which were the subject matter of the development contract. Armstrong’s interest in the leases was of value. If this contract imposed a liability against that interest, which liability was discharged by the proceeds of the oil, then it was taxable income.
If neither Armstrong nor his property were liable for any part of the cost of development; if he owned an ordinary working interest which entitled him to share only in net profits, then he receives no income until there are net profits. I am in considerable doubt as to the intention of the parties as expressed by this contract, and as illumined by their actions under it. I doubt if the parties intended that Armstrong should be personally liable for any part of the cost of development; but I am of the opinion that Armstrong’s interest in the leases was charged with his share of the cost of development. For this reason, but with considerable misgiving, I concur in the result.