Tschudy Lumber Co. v. Commissioner , 6 B.T.A. 95 ( 1927 )

OPINION.

Tetjssell :

This proceeding presents for determination (1) whether a certain logging contract had a capital value, and the amount of such value, if any; (2) whether such contract came into the possession of the petitioner as a contribution of capital in the nature of paid-in surplus; and (3) the allowance of an annual deduction from gross income based upon the gradual exhaustion of such capital value.

We have no doubt that business contracts, under which operations are to continue over a period of years, can properly be said to be valuable to both or all parties to such contracts. The contract here in question no doubt might have been the subject of sale or exchange, and if such sale or exchange had occurred, it might have established a capital value in such contracts, but no such exchange has taken place. It appears probable that the petitioner, either late in 1918 or early in 1914, began operations under this contract. Later, in the early part of 1918, it seems to have posted this contract on its books of account at a capital value of $260,000. Its valuation witness produced at the trial computed a value of $318,839.75, using an apparent difference between the cost of logs under this contract and the price at which the petitioner had purchased logs during the years 1911 and 1912, and applying a mathematical formula to such difference in cost over an estimated period of operations of twenty years. The computation of this valuation expert is not persuasive. An apparent differential in the cost of logs plus a mathematical formula, while perhaps sometimes useful, is not, standing alone, proof of capital values.

The evidence does not satisfactorily show whether the logs which were to be furnished under this contract would be of the same or similar nature to the logs purchased by the petitioner in the Memphis market. While the record of this case does not show the basis upon which logs are purchased in the Memphis market, it is taken for granted that the cash price of logs in that market is fixed after inspection of the particular logs to be purchased and is not based upon standard grades. The record is wholly lacking in proof that the logs to be acquired by the petitioner under the contract could or might have had a selling price equal to the figures at which the petitioner had purchased logs in the Memphis market.

In one of its earliest decisions (Dwight & Lloyd Sintering Co., 1 B. T. A. 179) the Board took the position that in ascertaining the capital value of an operating contract it would consider the results of operations under that contract in years subsequent to the basic date. At the time of the trial of this case the petitioner presumably had been operating under this contract for upwards of twelve years, and yet the record is silent as to what such operations produced in the matter of gains or losses, as well as the kind and quantity of logs procured under the contract. We are thus constrained to hold that the record of this case, so far as evidence of value of this logging-contract is involved, is insufficient to support either the estimated value placed on it by the petitioner in 1918, or the computed value offered in evidence at the trial, and that the Board would not be warranted, upon the evidence, in undertaking to establish any figure of capital value.

Having arrived at this conclusion, the petitioner’s .claim for exhaustion necessarily fails, and there is no occasion for making any findings as to whether the contract came into the hands of the petitioner as a contribution of capital.

The deficiency may be recomputed in aceord-_ance with the foregoing opinion, pursuant to Rule f>0, and judgment will be entered in due course.