On Petition for Review of the Decision of the United States Board of Tax Appeals.
Before CLARK and JONES, Circuit Judges, and GANEY, District Judge.
The petitioner is and has been since 1901 the owner of a gold and silver mine in Nevada. Petitioner operated the mine until it closed temporarily in February, 1930. The mine was reopened in October of that year under a plan whereby certain areas were leased to small groups of miners on a royalty basis. Petitioner had one other source of income. Prior to its leasing of the mine, it was able to recover only about 95% of the metals from the ore. The balance of 5% went into the tailings dump on petitioner's property. Methods of recovery then improved and it became feasible and profitable to recover practically all of the 5% which remained in the tailings dump. This, too, petitioner leased on a royalty basis.
The Supreme Court has conceded the power to tax the gross income received from the exploitation of mineral deposits without allowing a deduction for depletion.*fn1 Nevertheless Congress generously permitted such a deduction. Prior to the Revenue Act of 1932, the taxpayer had a choice of methods which might be used for determining the depletion allowance.*fn2 It could select the cost or fair market value as of March 1, 1913 or the discovery value.*fn3 The petitioner took depletion allowances every year until by 1923 the total deductions equalled both the fair market value and petitioner's actual cost of the mines. Then in 1932 Congress abandoned the discovery value method and adopted for the first time percentage depletion.*fn4 This Act required a taxpayer to elect in his 1933 return whether he desired to have his allowance determined upon the percentage or cost basis for future years. The same opportunity to elect methods was renewed in the 1934 Act.*fn5 Nevertheless, petitioner in its 1934 and 1935 returns made no such election, although it received royalties and returned income for those years. In its 1936 and 1937 returns, however, petitioner did attempt to elect to have the percentage depletion allowance applied to its mining property. Both of these elections were disallowed by the Commissioner of Internal Revenue on the ground that the petitioner failed to make an election in its 1934 return. The determination of a deficiency was appealed to the Board of Tax Appeals. After a hearing before the Board, but prior to the Board's decision, petitioner filed a motion to reopen the proceeding. It desired to introduce evidence upon a matter heretofore unconsidered - an asserted right to a percentage depletion upon the royalties received from mill tailings in 1936 and 1937. The Board denied the motion and rendered its opinion without reference to it. The Board affirmed the Commissioner's ruling that because the 1934 income tax return failed to state an election to have a depletion allowance computed on a percentage basis, the deductions might not be claimed in 1936 and 1937. Petitioner has appealed from the denial of its motion to reopen and from the Board's decision.
Since taxpayer's motion to reopen might properly have been denied if the deficiency was validly assessed, our first consideration must be the petitioner's right to make a new election in its 1936 return.*fn6 It makes two arguments in support thereof. Its subsidiary claim is based on the particular facts here involved. It asserts that an election is unnecessary because the only possible basis on which it could take a depletion allowance was the percentage basis. Since there was only one method by which a depletion deduction would have been available, it really had no choice, it argues, and therefore was not required to make the statement called for by the statute. As authority for this proposition petitioner cites our decision in Pittston-Duryea Coal Co. v. Commissioner.*fn7 Unfortunately for it, however, taxpayer comes within the exact difference in facts adverted to in the companion case of Kehoe-Berge Coal Co. v. Commissioner.*fn8 Petitioner reported a net income for 1934 and therefore must make an election even though its cost basis had been exhausted. Petitioner's argument overlooks one other point. In claiming that it had no real election in 1934, petitioner asserts that the only depletion allowance it could take in that year would be based upon the percentage method. This is quite true, but it must be remembered that Section 114(b)(4) of the Revenue Act of 1934 by its terms bound petitioner for all future years. If petitioner was contemplating additional capital expenditures in the immediate future, the percentage basis would not have been the most advantageous. Tax savings in the long run would have been greater in such circumstances if petitioner kept silent and used the cost method.
Petitioner's main contention is that the Act of 1936 gave it a new right of election. For the purposes of this argument, petitioner concedes that had the 1934 Act remained in effect, petitioner would have been bound by the election which it made or should have made in its first return thereunder. The fifth sentence of Section 114(b)(4) of the 1934 Act provides that the method so determined shall be applied "for all taxable years in which it [the property] is in the hands of such taxpayer, or of any other person." In an effort to avoid this language, the petitioner points out that Section 114(b)(4) of the 1934 and 1936 Acts are identical, as we indicated earlier in this opinion, except for the new sentence which is added at the end of the 1936 enactment. Petitioner stresses the phrase we italicized*fn9 ("for the purpose of determining whether the method of computing the depletion allowance follows the property"). The plain and obvious meaning of this phrase, petitioner argues, is that it is applicable only if there occurred a change in ownership of the property at some time after the method of determining the depletion allowance was fixed under the 1934 Act. Since there was no change in the ownership of petitioner's property, it says that the right to make an election as to the method of depletion set out in the 1936 law is not subject to the qualification in the last sentence thereof.
The problem, then, is the old one of interpreting the meaning of words used in statutes. Almost four centuries ago the Baron of the Exchequer declared that "the office of all the judges is always to make such construction as shall suppress the mischief, advance the remedy, and to suppress subtle inventions and evasion for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act pro bono publico."*fn10 Both Bacon*fn11 and Blackstone*fn12 in different words have reiterated the theory. Plowden even went further, saying: "It is a good way, when you peruse a statute, to suppose that the lawmaker is present and that you have asked him the question you want to know touching the equity.Then you must give yourself such answer as you imagine he would have done, if he had been present. * * * And if the lawmaker would have followed the equity notwithstanding the words of the law. * * * You may safely do the like, for while you do no more than the lawmaker would have done, you do not act contrary to the law, but in conformity with it." Plowden's Rep. 465. This type of interpretation is now known as judicial legislation and has been rejected.*fn13 While we do not go to the extent advocated by Plowden it is clear that we are not bound to adopt any literal meaning. As one commentator has put it: "The obvious meaning is not the correct one unless it is sensible. * * * If a statute is susceptible of another interpretation - a contextual or implied meaning - which is derived from the whole text itself with or without the use of extrinsic aids and if such contextual meaning is a fair one in that it accords with the ordinary use of language and with the object and prupose of the statute, it is clearly superior to any obvious or literal meaning which does not fulfill these demands." De Sloovere, Contextual Interpretation of Statutes, 5 Fordham Law Review 219, 220.*fn14
When Congress adopted the percentage depletion basis in the 1932 Act, it required a taxpayer to elect in his 1933 return whether he desired to have his allowance determined upon the percentage or cost basis for future years. The election for future years was designed to prevent taxpayers from switching back and forth from one method to the other. The legislative history is cited and is clear:
"Section 114(b)(4). Percentage Depletion for Metal Mines and Sulphur.
"Under paragraph (b)(4) metal mines are granted a percentage depletion allowance of 15 percent, and sulphur mines or deposits of 23 percent of the gross income from the property during the taxable year. As in the case of oil and gas wells this allowance can not exceed 50 percent of the net income of the taxpayer from the property. In respect to the taxable years 1932 and 1933 the taxpayer is privileged to have the greater of either (1) the percentage depletion allowance or (2) an allowance computed on the adjusted basis provided in section 113(b), 26 U.S.C.A. Int. Rev. Acts, page 518 (usually cost or March 1, 1913, value, with adjustments). This privilege is the same for those two years as that accorded both under the existing law and the bill in the case of oil and gas wells for all years.
"In the return for the taxable year 1933, however, the taxpayer is required to state as to each property whether he elects to have the depletion allowance for such property for succeeding taxable years computed with or without reference to percentage depletion; this election must be as between either percentage depletion or depletion computed upon the adjusted basis. In the case of any property in respect of which a return is first made in a year subsequent to the taxable year 1933, the election indicated in the return for such year shall be binding as to all future years. If the taxpayer fails to make such election in the return in which it should be indicated, the depletion allowances for that and succeeding taxable years will be computed on the adjusted basis." Report of Senate Finance Comm., S. Rept. No. 665, 75th Cong., 1st Sess., p. 30.
"The amendment requires that the taxpayer make in his 1933 return an election, binding for 1934 and subsequent years, whether he will have the depletion deduction as to each property computed with or without reference to percentage depletion, and the failure so to elect will preclude the use of the percentage definition." Report of the Conference Comm. with regard to Amendment No. 54, H. Rept. No. 1492, 72nd Cong., 1st Sess., p. 15.*fn15
This provision became effective on June 6, 1932 and it is therefore probable that many small companies were ignorant of their right to elect percentage depletion at the time when their 1933 returns were filed. Consequently, to avoid hardship to these companies it was decided to give them another chance to elect in 1934. The Revenue Act of that year permitted this new election, but again it was to be binding for all future years. As before, the purpose of making the election binding in the future was "to avoid administrative complexity".*fn16 The purpose of the clause, then, was to prevent a taxpayer from switching from one basis to another and to enable the Bureau of Internal Revenue to check the depletions taken as against the return of the previous year. When the Act of 1936 was passed, Congress kept the 1934 provision intact and added an additional sentence. With the preceding history of ...