26 U.S.C. § 636

Income tax treatment of mineral production payments

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(a) Carved-out production payments

A production payment carved out of mineral property shall be treated, for purposes of this subtitle, as if it were a mortgage loan on the property, and shall not qualify as an economic interest in the mineral property. In the case of a production payment carved out for exploration or development of a mineral property, the preceding sentence shall apply only if and to the extent gross income from the property (for purposes of section 613) would be realized, in the absence of the application of such sentence, by the person creating the production payment.

(b) Retained production payment on sale of mineral property

A production payment retained on the sale of a mineral property shall be treated, for purposes of this subtitle, as if it were a purchase money mortgage loan and shall not qualify as an economic interest in the mineral property.

A production payment retained in a mineral property by the lessor in a leasing transaction shall be treated, for purposes of this subtitle, insofar as the lessee (or his successors in interest) is concerned, as if it were a bonus granted by the lessee to the lessor payable in installments. The treatment of the production payment in the hands of the lessor shall be determined without regard to the provisions of this subsection.

(d) Definition

As used in this section, the term “mineral property” has the meaning assigned to the term “property” in section 614(a).

(e) Regulations

The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this section.

(Added Pub. L. 91–172, title V, § 503(a), Dec. 30, 1969, 83 Stat. 630; amended Pub. L. 94–455, title XIX, § 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834.)Editorial NotesAmendments

1976—Subsec. (e). Pub. L. 94–455 struck out “or his delegate” after “Secretary”.

Statutory Notes and Related SubsidiariesEffective Date

Pub. L. 91–172, title V, § 503(c), Dec. 30, 1969, 83 Stat. 631, as amended by Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095, provided that:“(1)General rule.—The amendments made by this section [enacting this section] shall apply with respect to mineral production payments created on or after August 7, 1969, other than mineral production payments created before January 1, 1971, pursuant to a binding contract entered into before August 7, 1969.“(2)Election.—At the election of the taxpayer (made at such time and in such manner as the Secretary of the Treasury or his delegate prescribes by regulations), the amendments made by this section shall apply with respect to all mineral production payments which the taxpayer carved out of mineral properties after the beginning of his last taxable year ending before August 7, 1969. No interest shall be allowed on any refund or credit of any overpayment resulting from such election for any taxable year ending before August 7, 1969.“(3)Special rule.—With respect to a taxpayer who does not elect the treatment provided in paragraph (2) and who carves out one or more mineral production payments on or after August 7, 1969, during the taxable year which includes such date, the amendments made by this section shall apply to such production payments only to the extent the aggregate amount of such production payments exceeds the lesser of—“(A) the excess of“(i) the aggregate amount of production payments carved out and sold by the taxpayer during the 12-month period immediately preceding his taxable year which includes August 7, 1969, over“(ii) the aggregate amount of production payments carved out before August 7, 1969, by the taxpayer during his taxable year which includes such date, or“(B) the amount necessary to increase the amount of the taxpayer’s gross income, within the meaning of chapter 1 of subtitle A of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] [this title], for the taxable year which includes August 7, 1969, to an amount equal to the amount of deductions (other than any deduction under section 172 of such Code) allowable for such year under such chapter.The preceding sentence shall not apply for purposes of determining the amount of any deduction allowable under section 611 or the amount of foreign tax credit allowable under section 904 of such Code.”

Notes of Decisions

Cited in 22 cases (4 in the last 5 years), 1971–2025 · leading case: Gibson Prods. Co. Kell Blvd. v. United States, 637 F.2d 1041 (5th Cir. 1981).

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Gibson Prods. Co. Kell Blvd. v. United States, 637 F.2d 1041 (5th Cir. 1981). · cites it 3× “Since § 636 provides that a production payment be treated as a loan, the Tax Court concluded that the nonrecourse notes given in exchange for turnkey drilling contracts and secured by future mineral production could be deducted as intangible drilling and development costs,…”

Paul P. Brountas v. Comm'r of Internal Revenue, Paul P. & Lynn T. Brountas v. Comm'r of Internal Revenue, 692 F.2d 152 (1st Cir. 1982). · cites it 2× “” See also 26 U.S.C. § 636 (b) (1976) (retained production payment).”

Crc Corp. v. Comm'r of Internal Revenue. Crc Corp. v. Comm'r of Internal Revenue, 693 F.2d 281 (3rd Cir. 1982). · cites it 2× “Alternatively, the taxpayer contends that in any event 26 U.S.C. § 636 authorizes the contested deduction because the nonrec-ourse note is a “production payment that is carved out of a mineral property.”

Feldman v. Pioneer Petroleum, Inc., 606 F. Supp. 916 (W.D. Okla. 1985). · cites it 3× “It does not deal with COPP loans from a general partner to a limited partner, but with a non-recourse loan from a general partner to a limited partner to fund part of the latter’s subscription price.”

H.J. Freede Josephine W. Freede Roger S. Folsom & Mary M. Folsom v. Comm'r of Internal Revenue, 864 F.2d 671 (10th Cir. 1989). · cites it 2× “A divided Tax Court held in favor of Taxpayers, finding that the excess payments created “production payments” within the meaning of Section 636(a) of the Internal Revenue Code, 26 U.S.C. § 636 (a), and Treas.Reg. § 1.636-3(a), 26 C.”

Wells v. Merit Life Ins., 671 F. Supp. 2d 570 (D. Del. 2009). “The parties’ consented to the jurisdiction of Magistrate Judge Thynge on August 24, 2009 pursuant to 26 U.S.C. § 636 (c) and Fed. R.Civ.P. 73.”

Thomas v. RIJOS, 780 F. Supp. 2d 376 (D.V.I. 2011). · cites it 2× “1 (designating Virgin Island magistrate judges to "hear and determine in all civil causes and pretrial matter permitted by 26 U.S.C. § 636 and Federal Rule of Civil Procedure 72.”

Cullen v. EH Friedrich Co., Inc., 910 F. Supp. 815 (D. Mass. 1995). “26 U.S.C. § 636 (b)(1)(B). On October 6, 1995, Plaintiffs voluntarily dismissed Mr.”

C.B. & Ida N. Christie v. United States, 436 F.2d 1216 (5th Cir. 1971). “See 26 U.S.C. § 636 . Pub.L. 91-172, Title V, § 503(a), Dec.”

Dorchester Gas Producing Co. v. Fed. Energy Regulatory Comm'n, 571 F.2d 823 (5th Cir. 1978). “Felicitous arrangements such as this became prospectively unavailable after a 1969 revision of the tax laws — specifically the enactment of Internal Revenue Code § 636(a), 26 U.S.C. § 636 (a) (1970) — and the ABC device is now passing into extinction.”

Richard M. & Brenda R. Yates v. Comm'r of Internal Revenue, 924 F.2d 967 (10th Cir. 1991). “See 26 U.S.C. § 636 . Section 636 was enacted as part of the Tax Reform Act of 1969.”

Finley W. Holbrook & Faith Holbrook v. Comm'r of Internal Revenue, 450 F.2d 134 (5th Cir. 1971). “Congress, in the Tax Reform Act of 1969, eliminated the use of the ABC transaction in the purchase of oil, gas, and other mineral properties by adding section 636 (b), which provides that a retained production payment in the sale of mineral properties is to be treated as a…”

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