¶1(dissenting). It seems to me that the majority have misconceived the implications of Act 162 of 1943, which provides that no income which arises from the use, production or sale of real estate situated in any other State shall be included in the gross or net income of a resident of Arkansas. Of course the purpose of this provision is to avoid double taxation, since such income is ordinarily taxed by the State in which the land is situated.
¶2If the appellee’s oil wells in Illinois had been productive the resulting income would have been exempt from Arkansas taxation by reason of the 1943 statute. In that case it seems clear that whatever expenses the taxpayer incurred in obtaining the production of oil would not be deductible on his Arkansas return, since it would be patently absurd to exempt the income and yet allow the expenses to be deducted from non-exempt income. This is the uniform holding elsewhere even when the statute, like ours, does not contain an express provision prohibiting the deduction of expenses incurred in earning tax-exempt income. Lewis v. Com’r of Internal Revenue, 3d Cir., 47 Fed. 2d 32; W. H. Williams Co., Inc. v. Cocreham, 214 La. 520, 38 So. 2d 157. The exception is necessarily réad into the law to carry out the legislative intention.
¶3In the present case tlie only difference is that the taxpayer’s efforts to obtain exempt income were unsuccessful. Of course, as the majority point out, there is no express provision in our law prohibiting the deduction of these expenses, but the same argument could be made if the Illinois venture had succeeded. Or what if one well had been productive and a second had not been? Would the expense of drilling the second be offset against taxable income earned in Arkansas, even though the net result of the Illinois operations showed a profit? These and like questions are certain to arise, and I hardly think that the majority opinion will aid our revenue department in arriving at an answer. The only way to avoid such illogical situations is to adopt a uniform rule that expenses incurred in an effort to earn exempt income are not deductible from other income, whether the effort succeeds or fails. Such a rule necessarily follows from the fact that operations intended to result in exempt income are simply not within the purview of our income tax laws.
¶4Dunaway, J., joins in this dissent.