Mineral Economics - "Depletion" in Federal Income Taxation of Mines

DEPLETION is a subject of vital importance to the mining industry. Yet, in spite of its importance, its significance is not generally understood. The purpose of this discussion is to clarify the main aspects of the subject from the viewpoint of a metal mine taxpayer. To define the term depletion, it is necessary to distinguish among its various uses. In the economic or geological sense, depletion means the exhaustion of a natural resource. A mineral deposit is a wasting asset and once exhausted is nonrenewable. Millions of years were needed to produce an ore deposit, which may be consumed in a few years and which cannot be replaced except by the discovery of new sources of supply. The wasting asset feature of the mining industry has a vital bearing on the impact of the Federal Income Tax Law on this industry. This is recognized in the law by the various provisions dealing with the depletion allowance, and in this sense the term depletion has an income tax meaning. Depletion from the tax viewpoint means the statutory deduction from gross income designed to permit the return to the taxpayer of the capital consumed in the production and sale of a natural resource. The mining enterprise realizes income on the extraction and sale of minerals and a portion of the income realized represents capital consumed. As the resource is exhausted, the mining enterprise approaches the end of its existence unless new sources of supply can be acquired. Depletion from the tax viewpoint is a creature of statute with limited meaning and application and, in essence, is a method for amortizing the value of the primary asset of a mining enterprise. An example can best illustrate the significance of depletion from the tax viewpoint. Compare a manufacturing concern with a mining company. In computing taxable income of a manufacturing concern, consideraion is given to the cost of producing such income, the principal costs being capital investment for plant and equipment, labor, and raw materials going into the products produced. A mining enterprise, on the other hand, is faced with a different problem because its principal asset is the natural resource which it is producing. In computing its taxable income, consideration is given also to its capital investment for plant and equipment and the cost of labor; but in addition, recognition must be given to the fact that a portion of the proceeds realized on the sale of mineral represents capital. Without such recognition, the mining company would be taxed not on income but on capital and income, and Congress has never intended that capital be taxed as income. Thus, when depletion allowable is referred to in the mining industry, it means the statutory deduction allowable in computing taxable income of a mining enterprise. For guidance the appropriate provisions of the Internal Revenue Code, Income Tax Regulations, and the judicial decisions interpreting and construing them must be examined. It is important to identify and distinguish three methods of determining the allowance for depletion: 1—Cost depletion, 2—Discovery depletion, and 3—Percentage depletion. The basic method is cost depletion and in addition some taxpayers may be entitled to use discovery depletion and other taxpayers may be entitled to use percentage depletion. Discovery depletion and percentage depletion, however, are mutually exclusive and if a taxpayer is entitled to percentage depletion, he is not entitled to discovery depletion. By statute, a metal mine taxpayer is entitled to use cost depletion or percentage depletion, whichever produces the highest deduction. Thus, discovery depletion is merely of academic interest to such taxpayers and to most others. Briefly and broadly speaking, these methods of determining depletion may be described as follows: 1—Cost Depletion: Under this method, the allowable deduction for depletion is based upon the cost of the particular deposit to the taxpayer, unless the deposit was owned prior to Mar. 1, 1913, in which case the taxpayer may use the fair market value of the deposit on that date or actual cost, whichever is higher. This method is sometimes described as basis depletion or adjusted basis depletion, but in this discussion it will be referred to as cost depletion. 2—Discovery Depletion: Under this method, the allowable deduction for depletion is based on the fair market value of the deposit at the date of discovery or within 30 days thereafter and was originally designed to take into account deposits discovered subsequent to Feb. 28, 1913. 3—Percentage Depletion: Under this method, the allowable deduction for depletion is based on a specified percentage of the income realized during the taxable year from a particular property. As stated, the concept of depletion is based upon the exhaustion of a natural resource as distinguished, for example, from the concept of depreciation based on the exhaustion of property used in trade or business. From the tax viewpoint, depletion first became important in the administration of the Corporation Tax Act of 1909, which provided for an excise tax on net income. As soon as this act went into effect, mining taxpayers attempted to claim a deduction for depletion in computing net income although there was no specific mention of a deduction for depletion in the statute. The courts in these cases uniformly held that the statute did not permit an allowance for depletion in computing net income and also held that the provision permitting a reasonable allowance for depreciation did not include depletion. These early cases are quite significant because they establish the principle that the