Titus Oil & Inv. Co. v. Commissioner

TITUS OIL & INVESTMENT COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Titus Oil & Inv. Co. v. Commissioner Docket Nos. 91993, 94877. United States Board of Tax Appeals 42 B.T.A. 1134; 1940 BTA LEXIS 898; November 1, 1940, Promulgated *898 Petitioner was organized in June 1933 and began the drilling of an oil well which was not completed prior to December 31 of that year. In a balance sheet attached to petitioner's original return for 1933, intangible drilling and development costs were included in an asset account entitled "Incomplete Wells." Petitioner's first well was completed as a producer in 1934. In an amended return for 1933, filed January 5, 1935, petitioner reported additional income, and also deducted intangible drilling and development costs as expense. Similar deductions were claimed by petitioner in returns filed for the taxable years. Held, petitioner in its amended return for 1933 made a binding election to treat intangible drilling costs as deductible expense rather than to charge same to capital, recoverable through depletion allowances. Clark G. Clinton, Esq., for the petitioner. Stanley B. Anderson, Esq., for the respondent. HILL *1134 These consolidated proceedings are for the redetermination of deficiencies in income tax asserted by respondent for the years 1934 and 1935 in the amounts of $3,229.54 and $379.98, respectively. The sole issue submitted*899 for decision is whether petitioner made a binding election in its original 1933 income tax return to capitalize intangible drilling costs of oil wells, which would be effective for the taxable years, or whether an effective election was made in an amended return for 1933 to charge off and deduct such costs as expense. Two additional assignments of error were abandoned by petitioner at the hearing. FINDINGS OF FACT. Petitioner is a Delaware corporation, organized June 28, 1933, with its principal place of business at Tulsa, Oklahoma. It kept its books and made its income tax returns on an accrual basis. On April 13, 1934, petitioner filed its income tax return for the year 1933, disclosing no tax liability. In schedule "K" attached to such return, consisting of petitioner's balance sheet at December 31, 1933, there appeared the following item in the "Assets" column, "Incomplete Wells $10,486.88." This item represented cost of equipment in the amount of $4,208.36, and intangible drilling expense in the amount of $6,278.52. The above amounts were expended by petitioner in 1933 in drilling its first well, which was not completed at December 31, 1933. At that time the well*900 was in process of cleaning out, and it was not then known whether it would be a commercial producer or would later *1135 be abandoned. At the end of 1933, or at the time petitioner's books were closed for 1933, its books and records showed the amounts expended for drilling during that year but it was not known whether additional expenditures would be required. Petitioner's first well was not completed as a producing well until the first part of the year 1934. At the end of 1933 it was not known whether the charges were all in against this well, and because of incomplete records allocation could not be made of expenditures between investment and expense. Some oil was produced during the cleaning out process, but was being held up. Because of defects in the title to the property, it was not known who would ultimately become entitled to receive the oil runs. No income from oil produced from the well was shown in the original return for 1933. Petitioner filed an amended income tax return for the year 1933 on January 5, 1935, which disclosed additional income of $683.54 from oil sales allocable to 1933, not shown in the original return for that year. The amended return*901 for 1933 disclosed total gross income of $4,593.88, total deductions of $13,919.64, and a net loss of $9,325.76. Included in the total deductions was the amount of $6,278.52 representing intangible drilling and development costs. The balance sheet as of December 31, 1933, shown in schedule "K" attached to the amended return for that year, disclosed that the item of "Incomplete Wells" (shown in the corresponding schedule attached to the original return) was not carried as an asset. Also, the item "Farm Investment" shown in schedule "K" attached to the original return was increased by the amount of $4,208.36 in schedule "K" attached to the amended return. Petitioner filed its income tax return for 1934 on March 15, 1935, and in this return a deduction of $40,835.40 was claimed for intangible drilling and development costs. In petitioner's income tax return for the year 1935, which was filed on March 14, 1936, intangible drilling and development costs were deducted in the amount of $6,437.13. OPINION. HILL: In computing the deficiencies involved in these proceedings, respondent disallowed deductions claimed by petitioner for intangible drilling and development costs, holding*902 that petitioner, in its original return for 1933, made a binding election, effective for subsequent years, to capitalize such expenditures. The deficiencies involved result in part from the adjustments to income so made by respondent. The sole issue for decision is whether petitioner, in its original return for 1933, made a final and deliberate choice to capitalize the controverted *1136 amounts, or whether it made a binding election in its amended return for 1933 to charge them to expense. Respondent defends his action specifically on the ground that at December 31, 1933, petitioner was in possession of all facts essential to the exercise of its right of election, and that by including the intangible drilling and development expenditures made in 1933 in the asset account entitled "Incomplete Wells" it thereby elected to capitalize such items and recover the amount through depletion allowances. Petitioner contends that at the end of 1933 the facts necessary to enable it to make an election were not known and could not then have been known; that the asset item "Incomplete Wells" shown on its balance sheet was in effect merely a suspense account, and that by the*903 filing of its original return for 1933 it did not intend to and did not in fact make an election to capitalize intangible drilling expenditures. Under the circumstances shown, we think petitioner's contention must be sustained. While it is true that at December 31, 1933, petitioner's books disclosed the amounts expended in that year for intangible drilling expense, as well as the amounts expended for equipment, it was not known whether additional expense would be incurred. The well was in process of being cleaned out, and some oil had been produced, but the ownership of the oil was in controversy. Furthermore, it was not then known whether the well would be a producer or would be abandoned. Obviously, knowledge of these facts was necessary to enable petitioner intelligently to exercise its right of election to charge drilling expenditures either to capital or to expense. In 1934 the well was completed as a producer, and petitioner received proceeds from the sale of oil properly allocable to 1933. This made it necessary to file an amended return for 1933 to report such additional income, and respondent does not question the propriety of that action. Petitioner filed such*904 amended return prior to filing its income tax return for the subsequent year 1934, and prior to expiration of the time in which it was required to file its 1934 return. It reported in such amended return the additional income for 1933, and also exercised its right to deduct drilling expenditures as expense. This, we think, constituted the first instance of deliberate choice by petitioner. In our opinion it would be unfair to petitioner to hold that it made an irrevocable election prior to completion of its first well and at a time when not all material facts were known. There is no statute expressly conferring upon taxpayers the right of election under consideration here, but such privilege is accorded by article 23(m)-16 of respondent's Regulations 86, issued under the Revenue Act of 1934. Similar regulations have long been in effect under prior acts, and apparently do not require a taxpayer to make *1137 an election prior to completion of his first well. See article 23(m)-16(d) quoted in material part below. 1 Under these regulations, petitioner could not be required to exercise its right of election prior to completion of its first well in 1934, and respondent concedes*905 that in its 1934 return it elected to deduct intangible drilling and development costs as expense. In , the Circuit Court had before it facts similar in all material respects to the present proceedings, and both the decision and reasoning of the court support the conclusions we reach hereinabove. See also , where we stressed the point that a taxpayer could not be held to have made a deliberate and binding election until adequate knowledge was had upon which judgment could be exercised in respect thereof. On the issue submitted for decision, respondent's action is disapproved. Decision will be entered under Rule 50. Footnotes 1. ART. 23(m)-16(d). * * * and a taxpayer who has never made expenditures for a nonproductive well prior to the first taxable year beginning after December 31, 1933, must make an election as to the cost of such wells in the return for the first taxable year in which the taxpayer completes such a well. ↩