
    Appeal of HENRY COAL CO.
    Docket No. 4740.
    Submitted November 2, 1925.
    Decided November 11, 1925.
    
      'William G. Seiner, Esq., for the taxpayer.
    
      M. N. Fisher, Esq., for the Commissioner.
    Before James Littletpn, Smith, and Trttssell.
   This is an appeal from the determination of a deficiency in income and profits tax for the fiscal year ending June 30, 1921, in the amount of $4,045.28, arising from the refusal of the Commissioner (1) to permit taxpayer to deduct as an ordinary and necessary expense $4,783.25, the cost of a storage battery mine motor purchased to replace mules, and $322.50, the cost of a shed for housing the motor when not in use; and (2) to include in invested capital the amount of $40,926, the alleged value of the unexpired portion of a coal lease, mine development, and equipment at the date of acquisition by the taxpayer on November 11, 1916, for stock, the members of the partnership to whom the stock of the taxpayer was issued for the property in proportion to their interests therein having acquired the property so paid in for $150.

FINDINGS OF FACT.

Taxpayer is a Delaware corporation, engaged in the mining and sale of coal, with its principal office at Kittanning, Pa.

On December 27, 1915, Mary Henry, a resident of Kittanning, being the owner of certain coal lands in that vicinity, leased to the Kittanning Real Estate Co., a Pennsylvania corporation, for a period of 10 years, the right to mine all of the coal contained in a certain tract of land of 7 acres situated in East Franklin Township, Armstrong County, Pa. Coal had been mined from this property since 1870. About November 1, 1916, J. F. Carpenter, J. T. Colbert, and L. G. Bonstein organized a partnership, known as the Henry Coal Co., for the purpose of acquiring coal properties, mining and selling coal. On November 11, 1916, these individuals acquired the right to purchase from the Kittanning Real Estate Co. the unexpired lease above mentioned, together with all mine development and equipment, and on the same date they caused the Kittanning Real Estate Co. to assign and transfer said lease and other property to the Henry Coal Co., a partnership, in consideration of the payment by the partnership of a wage claim against the Kittanning Real Estate Co. of $150 and a royalty of 25 per cent of the net income from the coal mined from said property. On November 11, 1916, the development and equipment of the mine consisted of a heading approximately 600 feet long, tracks, mine cars, miscellaneous tools, supplies, and a tipple. At that time the mine had a production capacity of approximately 900 tons a month. On May 23, 1917, Carpenter, Colbert,, and Bonstein, each of whom owned a one-third interest in the partnership, incorporated the business under the name of the Henry Coal Co., with an authorized capital stock of $40,000. On July 1, 1917,. the lease, mine- development, and equipment owned by the partnership were transferred to the corporation, and in exchange therefor the corporation issued to the three individuals above named its entire capital stock in proportion to their interest in the partnership.

' For the purpose of replacing the mules used in hauling coal from the mine, and in order to provide a more efficient method for removing the coal to railroad cars, as well as to maintain the output of the mine, the taxpayer purchased in.June, 1921, a storage-battery mine motor at a cost of $4,783.25 and erected a shed for the storage of the motor at a cost of $322.50.

The Commissioner determined that, under section 331 of the Revenue Acts of 1918 and 1921, the taxpayer was not entitled to include in invested capital any amount in excess of $150, the cost to the partnership of the lease, mine development, and equipment. He also determined that the cost of the mine motor and shed were capital expenditures and disallowed the deduction of the same as -ordinary and necessary expense.

DECISION.

The determination of the Commissioner is approved. Appeal of Winifrede Coal Co., 1 B. T. A. 566; Appeal of Baker, Hamilton & Pacific Co., 2 B. T. A. 1.  