On petition to review the Decision of the Tax Court of the United States.
Before JONES and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge.
KALODNER, District Judge.
The issue here is whether or not petitioner is entitled to a new right of election in respect to the percentage depletion deductions claimed for the taxable years 1938 and 1939 under the provisions of Section 114(b)(4)*fn1 of the Revenue Act of 1936, 26 U.S.C.A. Int. Rev. Acts, page 867.
The facts were found by the Tax Court as follows:
The taxpayer is a corporation organized under the laws of the State of West Virginia for the purpose of mining and the production of coal. It filed its income and excess profits tax returns for the years 1938 and 1939 with the Collector of Internal Revenue for the Twenty-third District of Pennsylvania at Pittsburgh, Pennsylvania.
On February 26, 1927, the taxpayer entered into an agreement with the Harlan Splint Land Company of Kentucky, whereby the taxpayer acquired, at no cost to the taxpayer, a coal mining leasehold located in Harlan County, Kentucky. The taxpayer has at all times remained the lessee thereunder.
In the return of the taxpayer for the year 1938 a deduction for depletion in the amount of $37,700.76 was claimed, and similarly in its return for the year 1939 the amount of $34,922.63 was claimed as a deduction for depletion. Such claims for depletion were made upon the so-called percentage basis for computing depletion, and the Commissioner disallowed the claims of percentage depletion. No part of the above amounts claimed for depletion in the taxpayer's income and excess profits tax returns for the years 1938 and 1939 was computed upon the cost basis for computing depletion.
For the years 1934 and 1935 (during which it operated at a loss) the taxpayer did not indicate in its return its election to adopt the percentage method of computing its depletion allowance.
In its return for the year 1936 (which disclosed a small net income) the petitioner for the first time stated its election to have its depletion allowance "computed with regard to percentage depletion."
The Tax Court sustained the Commissioner's determination disallowing the petitioner's claim for deductions for depletion computed on the percentage basis because of its failure to indicate its election therefor on its first return filed for the taxable year 1934.
The petitioner contends that under the provision of Section 114(b)(4) a taxpayer is not required to elect percentage depletion except upon the first return after it had a net income from which such depletion could be allowed as a deduction and, further, that the Act of 1936 confers upon the taxpayer a new right of election except in cases of change of ownership.
The petitioner is confronted with adverse decisions as to both of these contentions - one by the Supreme Court of the United States and the other by this Court.
In Mother Lode Coalition Mines Co. v. Helvering, Commissioner of Internal Revenue, 317 U.S. 222, 226, 63 S. Ct. 179, 182, 87 L. Ed. 227, the Supreme Court of the United States rejected the contention "that 'first return' means 'first return made ...