KENNERLY, Chief Judge.
This is a suit by plaintiff against defendant to recover income tax paid under protest by plaintiff for the years 1942, 1943, and 1944. Two questions are presented:
(a) Whether plaintiff, who with others on December 7, 1932, executed an oil and gas lease to the Sun Oil Company, retaining, in addition to the usual one-eighth royalty, a one-half working interest, shall be allowed depletion on the basis of net profits applicable...
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