
    LAIRD v. COMMISSIONER OF INTERNAL REVENUE.
    No. 8678.
    Circuit Court of Appeals, Fifth Circuit.
    June 29, 1938.
    Harry C. Weeks, of Fort Worth, Tex., for petitioner.
    Helen R. Carloss, Lucius Buck, and Se-wall Key, Sp. Assts. to Atty. Gen., James W. Morris, Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Frank M. Thompson, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.
    Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
   FOSTER, Circuit Judge.

The question presented for decision in this case is whether petitioner, who had executed an oil and gas lease for a consideration paid partly in cash and to he paid partly out of oil to be produced from the lease, but without retaining a royalty interest, was entitled to depletion on the cash received The Board decided that petitioner was not entitled to claim depletion on the cash payment. We may refer to the opinion of the Board for the facts in detail without repeating them. See 35 B.T.A. 75. On the authority of Commissioner v. Fleming, 5 Cir., 82 F.2d 324; Blankenship v. United States, 5 Cir., 95 F.2d 507; Helvering v. O’Donnell, 58 S.Ct. 619, 82 L.Ed. -; and Helvering v. Elbe Oil Land Development Co., 58 S.Ct. 621, 82 L.Ed. -, the decision of the Board is

Affirmed.  