
    Otis A. KITTLE, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 14402.
    United States Court of Appeals Ninth Circuit.
    Jan. 10, 1956.
    As Amended Feb. 14, 1956.
    Kenneth P. Dillon, Vargas, Dillon & Bartlett, Reno, Nev,, for petitioner.
    H. Brian Holland, Asst. Atty. Gen., C. Guy Tadlock, Ellis N. Slack, Hilbert P. Zarky, Walter Akerman, Jr., Sp. Assts. to Atty. Gen., for respondent.
    Before HEALY, POPE and LEM-MON, Circuit Judges,
   PER CURIAM.

This is a petition to review a decision of the Tax Court holding that amounts received by the petitioner in 1947 as payments under a lease of iron ore lands were royalties, taxable as ordinary income. The petitioner contends that the amounts received constituted capital gains from the sale of the minerals in place.

The decision of the Tax Court entered January 28, 1954, in this case, ordering and deciding that there is an overpayment for 1945 shall be modified by the addition of the following: ‘and that such portion of the tax was paid after the mailing of the notice of deficiency. Section 322(d) (1) (D), Internal Revenue Code of 1939 [26 U.S.C.A. § 322(d) (1) (D) ].’

As thus modified, we agree with the holding of the Tax Court and affirm its decision for the reason given in its opinion, 21 T.C. 79.  