Sneed v. Commissioner

J. T. SNEED, JR., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Sneed v. Commissioner Docket No. 45694. United States Board of Tax Appeals 30 B.T.A. 1121; 1934 BTA LEXIS 1222; June 29, 1934, Promulgated *1222 1. Prior to his marriage petitioner's brother conveyed to him an interest in their father's estate, and thereafter petitioner asserted claim thereto in partition proceedings and upon distribution of the estate received certain real estate. But conveyance was made to petitioner under agreement that the lands were not to be his until he paid fo them; that, until petitioner made payment, the brother might convey to another; and that the purpose of the conveyance was to put title in petitioner so that a loan could be obtained on the property and the brother's debts discharged. Thereafter, petitioner was married, and later obtained a loan on this and his own properties and paid his brother the agreed price. Held, the purchase was made after petitioner's marriage, and, under the laws of Texas the lands were community property. 2. Bonuses received in connection with oil and gas leases upon petitioner's separate property are his separate income. 3. Delay rentals received in connection with oil and gas leases are community income whether lands under lease were separate or community property. 4. In the absence of a producing well on property, allowance for depletion of lease*1223 bonuses denied, even though future production of properties under lease was practically assured. G.C.M. 11384 rejected; Lizzie H. Glide,27 B.T.A. 1264, followed and extended. 5. Petitioner submitted to revenue agent in charge (Dallas, Texas) a signed consent to extension of statutory period for assessment of tax for 1925, but wrote in a limitation as to amount of tax. The agent notified petitioner that this limited consent was not acceptable and demanded an unmodified consent, which petitioner refused to supply. Except for a statement in the notice of deficiency, issued after the expiration of the period, stating that consent was on file, the record discloses no other action by respondent respecting the consent, and no writing evidencing his acceptance of it before the time expired. Petitioner submitted no consent after expiration of statutory period. Held, the modified consent relied upon by respondent is ineffective, and assessment of the deficiency determined for 1925 is barred by statute. Harry C. Weeks, Esq., Charles F. Keffer, Esq., and Walter G. Russell, Esq., for the petitioner. Frank B. Schlosser, Esq., and*1224 R. B. Cannon, Esq., for the respondent. GOODRICH *1122 In assailing respondent's determinations of deficiencies in income tax for 1925 and 1926 in the respective amounts of $1,168.21 and $27,917.64, petitioner contends, first, that all the lands acquired by him subsequent to his marriage are community property; second, that an interest in his father's estate was acquired by petitioner from his brother after marriage and is community property; third, that delay rentals and bonuses received in connection with oil and gas leases upon his lands were community income, whether the lands were community or separate property; and, fourth, that the amount of the delay rentals and bonuses to be included in his income should be reduced by the deduction of an allowance for depletion. With respect to the deficiency for 1925, he further contends that its collection is barred by the statute of limitations, for the reason that the consent extending the statutory period upon which respondent relies is invalid. FINDINGS OF FACT. Petitioner is a resident of Amarillo, Texas. He was married on June 30, 1913, and has continuously been a resident of Texas since that date. *1225 All of the income here involved was reported as community income, divided one half to each in separate returns filed by petitioner and his wife for the years here before us. His father died in March 1912. For some years prior to that date, petitioner was engaged as a partner, first with his brother, and later with his father, who bought out the brother's interest, in a partnership operating in the ranching and cattle business. Petitioner owns a ranch of about 85,000 acres in Moore County, Texas, and various tracts of these lands are embraced in oil and gas leases granted by him during the years now before us. A part of petitioner's holdings was purchased by him prior to his marriage; additional acreage was conveyed to him in the partition of his father's estate under decree of July 28, 1913; the remainder he acquired by purchases subsequent to his marriage, the deeds thereto being in evidence as Exhibits 8 to 11, inclusive. We adopt by reference *1123 as a part of our findings, Exhibits 1 and 2, which disclose, among other things, the source and date of acquisition of the various portions of the ranch embracing oil and gas leases later granted. Only as to the leased*1226 tracts is the time of acquisition material in this controversy. Respecting the lands acquired by petitioner upon the partition of his father's estate, we find that for some years prior to March 1912, when his father died, petitioner was engaged with him as an equal partner in the ranching and cattle business. The partnership owned a ranch of about 77,000 acres, in which a one-half interest belonged to petitioner upon the dissolution of the partnership by the death of the father. Petitioner inherited a one-seventh interest in his father's estate, or a one-fourteenth interest in the partnership lands. Petitioner's brother, J. B. Sneed, inherited a like interest. About this time, the latter was in serious difficulty and heavily in debt. On some of his indebtedness petitioner and other relatives were secondarily liable. By deed dated June 7, 1913, recorded on June 18, 1913, acknowledging receipt of a cash consideration of $50,000, J. B. Sneed conveyed to petitioner a one-seventh undivided interest in the lands formerly owned by the partnership. (The record does not explain why J. B. Sneed purported to convey a greater interest than he had, which both parties agree upon brief*1227 was a one-seventh undivided interest in the father's estate.) The consideration recited was not in fact paid at that time. Between the brothers, it was understood that the conveyance was made for purposes of accommodation; to pass title to petitioner that he might obtain a loan secured by his lands, and with the proceeds make payment of the purchase price to J. B. Sneed, who, in turn, would then discharge his indebtedness upon which petitioner and other members of the family were secondarily liable. It was further understood between the brothers that petitioner was not to have the land unless he paid for it; that if he failed to raise the funds by which to make payment, he was to reconvey to J. B. Sneed; that the latter was free to seek another purchaser for the property in the meantime, and that petitioner would convey to that purchaser should such a sale be arranged before petitioner had paid the recited consideration. The agreement between petitioner and his brother was entirely oral. On July 29, 1913, a decree was entered in the suit between the Sneed heirs pending in the District Court of Moore County, partitioning the lands owned by the former partnership. In those proceedings*1228 petitioner claimed as his own the interest of his brother, to which he held title, and, accordingly, that interest was included along with petitioner's partnership interest and his own inheritance *1124 in the lands vested in him, which totaled 55,847 acres (after an adjustment to the other heirs for their shortages of some 326 acres). In November 1913 petitioner borrowed $120,000, secured by deed of trust, in which Mrs. Sneed joined, upon all his lands, including the acreage received in the partition, and from these funds made payment to his brother of $50,000. During 1925 and 1926 petitioner granted about fifty oil and gas leases covering various portions of his ranch lands. The leases were in the form and upon the terms generally used in that field, most of them carrying provisions for bonuses and delay rentals. During these years petitioner devoted about three fourths of his time to conferences with prospective lessees and other matters incident to the granting of the leases, most of which were negotiated through a broker. In 1925 petitioner received bonuses of $10,400 and delay rentals of $10,364, a total of $20,764, of which respondent has treated $20,164 as separate*1229 income and the balance, $600, as community income. In 1926 he received bonuses of $210,857.18, and delay rentals of $26,605.11, a total of $237,462.29, of which respondent has treated $180,218.29 as separate income and the balance, $57,244, as community income. Expenses in connection with the making of the leases aggregated $559 in 1925 and $23,860 in 1926. These amounts were allowed by respondent as deductions from income, divided between separate and community income in the same ratio as he divided the bonuses and rentals. No dispute exists respecting the amounts received as bonuses and rentals, nor as to the amount of the expenses, the whole controversy being as to the status of the income, whether community or separate, and the allocation of the expenses between the two estates. Exhibits 1 and 2, previously mentioned, show in detail the leases from which the bonuses and rentals arose. The income arising from leases of lands owned by petitioner prior to his marriage, from leases upon lands acquired by him in the partition of his father's estate (including the acreage representing the interest purchased from J. B. Sneed), and a part of the income arising from leases of lands*1230 purchased by him after marriage, respondent has treated as separate income. In 1922 a gas well as brought in on a lease previously granted embracing a tract nearly in the center of petitioner's lands. While the well was capable of producing (though whether in paying commercial quantities we do not know), no gas was removed during the years 1925 and 1926, for no pipe line was laid until after that time. In 1925 the whole of petitioner's ranch was regarded as proven oil or gas territory, probably productive of oil or gas, or both. *1125 Petitioner's return for the year 1925 was filed on May 14, 1926. Respondent's notice of deficiency was issued on July 18, 1929. In January 1929, the revenue agent in charge at Dallas, Texas, transmitted to petitioner the usual form of consent extending the statutory period for assessment of tax for the year 1925, requesting its execution and return. Petitioner complied with that request under date of January 5, 1929, but wrote into the consent as a limitation upon the amount of deficiency, "not exceeding the sum of $1,168.21." Thereafter, on January 10, 1929, the revenue agent wrote petitioner in part as follows: You are advised that*1231 the waiver form as modified is not acceptable to this office, therefore, unless the taxpayer desires to submit an unqualified waiver extending the period within which an additional assessment may be made for the year 1925 to December 31, 1929, it will be necessary to transmit Agent Dubb's report to Washington for review and assessment at an early date. * * * Unless the enclosed waiver forms properly executed are received in this office within 10 days from the date of this letter it will be necessary to transmit the case to the Bureau at Washington for review and assessment. Petitioner refused to execute and submit an unqualified consent. The revenue agent in charge transmitted the case to the Bureau at Washington. Respondent's notice of deficiency contains the following statement: "Consent is on file for the year 1925 extending the statutory period of limitations to December 31, 1929." Exhibit 13, submitted in evidence as a copy of the limited consent of January 5, 1929, bears the signature of petitioner but not that of respondent. Petitioner's return for the year 1925 was filed on May 14, 1926. OPINION. GOODRICH: It is admitted that under the Texas statutes 1 the*1232 lands purchased by petitioner prior to his marriage, his interest in the partnership lands which he owned prior to marriage, and the lands representing his interest in his father's estate were his separate property. It is clear also, and respondent inferentially admits it, that the lands purchased by petitioner subsequent to his marriage are community property. Since the record (Exhibits 1 and 2) discloses the source and date of acquisition of all the tracts under lease (and we are here concerned only with the leased lands), the classification of the lands, the income arising therefrom, and the allocation of the expenses are a simple matter, except for the property representing the interest purchased from J. B. Sneed. The time of that purchase is in controversy. Respondent determined and maintains *1126 that it was effected prior to petitioner's marriage; petitioner contends it was effected thereafter. We are of opinion that the interest was not purchased by petitioner until subsequent to his marriage and therefore that the lands were community property. *1233 True, ostensibly this interest was conveyed to petitioner by deed of June 7, 1913, which was a short time prior to his marriage (June 30, 1913) and was claimed by him in the partition proceedings as a part of his share of his father's estate. If petitioner's ownership in the property had its inception when the deed was executed, the lands conveyed became and thereafter remained his separate property, for the Texas rule is that the date of inception of ownership fixes the status of the property. 2 Petitioner does not question that rule, but contends that under the facts in this case his ownership did not have its inception in the passing of the deed before his marriage, but in the payment of the money thereafter. With that we agree. The testimony is uncontradicted and convincing that the transfer of the legal title to petitioner was for the accommodation*1234 of the transferor; that the purpose was to enable petitioner to raise money by a loan, secured by him upon these lands, with which to enable J. B. Sneed to discharge the indebtedness upon which petitioner and other relatives were secondarily liable. It was with that understanding between the brothers that petitioner claimed the interest in the partition suit. As we view it, this is not a case where a bona fide conveyance is made effecting a completed sale, with payment of the consideration deferred. Petitioner was not obligated to buy the land, nor was it to be his until he paid for it. He had no option to buy, for J. B. Sneed was free, until petitioner should pay him the agreed price, to sell to any purchaser he could find. As between the parties the conveyance was not final, but conditional, and petitioner held only as trustee for security and convenience. We doubt whether the conveyance under such circumstances could have withstood an attack by creditors or other interested parties, and it is well settled that property conveyed upon trust, in which neither husband nor wife has any beneficial interest, is not community property. 3 *1235 We conclude that no sale of the J. B. Sneed interest to petitioner was accomplished until after petitioner's marriage, when he obtained a loan and paid for the interest of his brother in the father's *1127 estate. The lands received by petitioner upon partition of that estate, totaling 55,847 acres, represented nine-fourteenths of the total acreage owned by the partnership; seven-fourteenths being petitioner's interest as a partner, one-fourteenth being his interest as an heir, and one-fourteenth being the interest he purchased from his brother (although the deed recited the brother's interest as one-seventh of the whole of the partnership lands). The lands representing the purchased interest in the estate should be classified as community property. We come, then, to a consideration of the controversy respecting the classification, for purposes of the tax, of the income arising from the property under the leases - the delay rentals and bonuses. Petitioner vigorously contends that these revenues are community income and should be so taxed, no matter whether the leases embraced separate or community lands. As to the bonuses, this contention heretofore has been resolved*1236 against him, for it has been determined that cash considerations paid for the execution of leases upon separate property are the separate income of the owner of the property. James R. Parkey,16 B.T.A. 441; John O'Neil,16 B.T.A. 614; W. P. Ferguson,20 B.T.A. 130; affirmed as to this issue, 45 Fed.(2d) 573; Oscar Chesson,22 B.T.A. 818 (petition for review denied, 57 Fed.(2d) 141); E. Michna,24 B.T.A. 715. We are not persuaded to a deviation from this rule of decision by petitioner's argument that the character of the bonus income was changed by reason of the fact that much of his time and attention was given to the negotiation of the leases (the majority of which were consummated through brokers). See No. 1 Oil Corp. v. Bass,283 U.S. 279; Rose v. Houston,11 Tex. 324; Arnold v. Leonard,114 Tex. 535; Stephens v. Stephens,292 S.W. 291. The bonuses received should be taxed as separate or community income in accordance with the classification of the properties under lease, covered by the*1237 various leases as shown by Exhibits 1 and 2, upon which the bonuses were paid. This allocation may be made upon settlement of the case. But it is held also that no distinction exists between delay rentals arising under leases and ordinary rentals of farm lands, and that the latter are income of the marital community, notwithstanding that the lands from which they arise may be the separate property of either spouse. G.C.M. 11197, C.B. XII-1, p. 238; John O'Neil, supra, citing Willcutt v. Willcutt,278 S.W. 236; Caruthers v. Leonard,254 S.W. 779. Therefore, the delay rentals received during 1925 and 1926 should be taxed as community income. Petitioner's claim for the deduction from income of an allowance for depletion of 27 1/2 percent of the income from the properties *1128 (delay rentals and bonuses) is also controlled by prior decision. In Lizzie H. Glide,27 B.T.A. 1264 (on review C.C.A., 9th Cir.), we held that depletion is inseparably related to production; that unless there is production, no depletion of reserve is in fact sustained, and no allowance therefor may*1238 be made. Here there was no production from any of the leased properties during the years before us. There was a well upon one lease it is true, but it was shut in and no gas was removed. A closed well does not produce; it does not exhaust the reserve; its mere existence does not set up production inseparable from depletion, nor serve to exempt the case at bar from application of the effect of the Glide case. But this case goes further on its facts. Without a detailed recital of the evidence, we have found as a fact that petitioner's lands in 1925 were regarded as proven oil or gas territory. The testimony of a qualified geologist, familiar with petitioner's lands and the field in which they are situate, the charts introduced showing existing wells in adjacent territory, and the fact that gas was found on petitioner's lands convince us that future production from wells which might be drilled on those lands was practically assured in 1925. That finding brings the case squarely within one of the situations described by respondent in G.C.M. 11384, C.B. XII-1, p. 64, in which he would permit the deduction of an allowance for depletion from income received as bonuses*1239 on leases, his description being as follows: "(1) No oil being produced when the bonus was received, but future production practically assured because of near-by wells and geological indications." We decline to follow this view, and therefore disapprove the above quoted portion of respondent's ruling. If we are correct in holding that without production there is no depletion (which, in fact, cannot be denied) and that without actual depletion there may be no allowance therefor, the probability of production from a property in the future is immaterial. Unless that production is obtained within the same taxable period in which the bonus is received, the latter must be carried into income unreduced by an allowance for depletion. We are fully cognizant of the possibility, which petitioner on brief points out, that cash considerations received in connection with the granting of leases in one year perhaps may never be reduced by a depletion allowance because production was not obtained until a later taxable period. If that situation is to be corrected, the task is for the Congress, not for respondent, nor for this Board or the courts to attempt by a straining of the plain provisions*1240 of the statute. See Aubrey Umsted,28 B.T.A. 176. We conclude that petitioner may not deduct any allowance *1129 for depletion in either 1925 or 1926. This result is amply supported by the decision of the Circuit Court of Appeals for the Fifth Circuit in Herring v. Commissioner, 70 Fed.(2d) 785, which affirmed our memorandum decisions in Dockets 47041 and 47042 (June 29, 1933), wherein we followed the Glide case, supra. The remaining issue relates to the validity of the consent upon which respondent apparently relied in issuing his notice of the deficiency for 1925 after the time within which, without an extension by mutual consent in writing, the assessment thereof would be barred by statute. Petitioner contends that there is no consent; that the qualified consent which he submitted was rejected by respondent. We agree with him. The rejection of petitioner's modified consent by the revenue agent in charge, who represented and acted for respondent, was definite and unequivocal. There is no evidence before us to indicate that respondent, within the statutory period, disapproved of his agent's refusal of the offered consent*1241 or took any action evidencing a reconsideration of the refusal and a consequent acceptance of and reliance upon the consent. Nor does the record show that petitioner asked for or received any benefits by reason of his offer to agree to a waiver of the statutory period. On the contrary, his refusal to comply with respondent's demand to submit a second consent in form acceptable to respondent shows clearly that petitioner was willing that respondent proceed at once to a final determination of deficiency in the case, and to the assessment thereof unless stayed by petition to the Board, within the period allowed by law. Therefore, the consent form signed and offered by petitioner and rejected by respondent was of no effect, and prior to the expiration of the statutory period there was no agreement in writing between the parties for an extension of that period. See American Railways Co.,30 B.T.A. 939. Moreover, even had respondent's rejection of the offered consent been less definite, there would still be no agreement in form prescribed by statute, for respondent has failed to sign the consent in evidence of his agreement thereto. We understand the rule to be that*1242 a consent is ineffective unless signed by or on behalf of the Commissioner, Chadbourne & Moore,16 B.T.A. 961; Melville W. Thompson,18 B.T.A. 1192; Corn Products Refining Co.,22 B.T.A. 605; Atlantic Mills, etc. v. United States,3 Fed.Supp. 699; U.S. Refractories Corp.,23 B.T.A. 872; affd., 64 Fed.(2d) 69; 290 U.S. 591; (Contra, Commissioner v. Hind, 52 Fed.(2d) 1075; reversing 18 B.T.A. 96; Parker v. Commissioner, 49 Fed.(2d) 254) - unless the Commissioner's written approval of the consent appears elsewhere *1130 or can be reasonably inferred. Stearns Co. v. United States,291 U.S. 54. Here, the consent is not signed by or for respondent, and his only writing which could possibly record his approval or from which his approval could possibly be inferred, is the deficiency notice issued on July 18, 1929, after the statutory period had expired. Consequently, it cannot be said that before the period expired the parties had consented in writing to an extension of the time. Nor can*1243 it be said that both consented in writing after the time prescribed as permitted by section 278(c), 1924 Act, for petitioner submitted no consent except that on January 5, 1929. Respondent's notice of a deficiency for the year 1925 came too late. Reviewed by the Board. Judgment will be entered under Rule 50. ARUNDELL ARUNDELL, dissenting: For the reasons so ably set forth by Judge Sibley in Herring v. Commissioner, 70 Fed.(2d) 785, I disagree with the majority opinion in this case in disallowing depletion to taxpayer. Under the practice of the Bureau of Internal Revenue and the decisions of the Board, depletion allowances are treated as more intimately connected with income from the property than with actual production. That is, it has not been thought necessary to have both production and income in the same year in order for depletion deductions to be allowable. See Clearfield Lumber Co.,3 B.T.A. 1282; R. M. Waggoner,5 B.T.A. 1191; Inspiration Consolidated Copper Co.,11 B.T.A. 1425; A.R.M. 12, C.B. 2, p. 144. While the rule of those cases perhaps should not be extended to situations*1244 where there is no production within a reasonable time after payment of a bonus, the Commissioner has interpreted the statute to apply to cases where production is practically assured. G.C.M. 11384, C.B. XII-1, p. 64. This ruling, promulgated after Murphy Oil Co. v. Burnet,287 U.S. 299, is designed to give the reasonable allowance required by the statute. The facts in this case show that production was practically assured, and it also appears in the record, though not found as a fact, that fifteen or twenty wells have since been drilled, all producing or capable of production. I think the Commissioner's ruling to be sound, and as it concededly applies to this case it is error to deny deductions for depletion against the bonuses. LEECH agrees with this dissent. Footnotes 1. Texas Civil Statutes (1914), arts. 4621, 4622; Texas Civil Statutes (Revision 1925), arts. 4613, 4614, 4619. ↩ 2. See Speer's Law of Marital Rights in Texas, 3d ed., p. 1051; note from 17 L.R.A.U.S.) 154 appended to decision in Creamer v. Briscoe,101 Tex. 490 (109 S.W. 911). See also for discussion of applicable principles, John M. King,26 B.T.A. 1158; affd. 69 Fed.(2d) 639↩. 3. See Speer, Law of Marital Rights in Texas, P357, p. 438; Crenshaw v. Harris,↩ 41 property.