Woodmar Realty Co. v. Commissioner , 17 B.T.A. 88 ( 1929 )

WOODMAR REALTY CO., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Woodmar Realty Co. v. Commissioner

Docket No. 30984.

United States Board of Tax Appeals

17 B.T.A. 88; 1929 BTA LEXIS 2362;

August 6, 1929, Promulgated

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E. Barrett Prettyman, Esq., and E. L. Kohler, C.P.A., for the petitioner.

G. S. Herr, Esq., for the respondent.

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PHILLIPS

The Commissioner determined deficiencies of $969.54, $8,152.21, and $11,350.84 in income tax for the fiscal period from October 1, 1923, to December 31, 1923, and for the calendar years 1924 and 1926, respectively. The petitioner instituted this proceeding for a redetermination of such deficiencies, alleging in substance that the Commissioner erred in failing to recognize that contracts received by petitioner upon sales of lots had no fair market value when received.

FINDINGS OF FACT.

Petitioner is a corporation organized and doing business under the laws of the State of Indiana. It began operations about October 1, 1923.

Petitioner was engaged in the business of subdividing and selling real estate. Its only property was a subdivision known as Woodmar, originally consisting of an unimproved tract of 640 acres. This subdivision is located about 3 1/2 miles southeast of the main business district of Hammond, Ind. Hammond is an industrial city and a large railroad center, located on the southeast boundary of the City of Chicago and having about 75,000 inhabitants. At the time this operation was begun by petitioner, there were in Woodmar no streets except the original country roads, no sidewalks, no sewer, no water or gas, no buildings except the original farm buildings, and no transportation to or from the property. The nearest street car line was about 2 1/2 miles north of the northerly limits of the subdivision. Until 1927 the nearest motor-bus transportation was about 2 miles away. The district sewer was built in 1925 and the main laterals in certain parts of the subdivision in 1926 or 1927. The first street was built in 1927. Water and gas were installed in 1927. No buildings were built until 1925 and up to March, 1929, only 55 buildings had been built on the subdivision.

Petitioner sold its lots generally at 20 per cent down and 2 per cent per month, which 2 per cent at first covered principal only, but after July, 1926, included not only principal, but also interest. Under the first arrangement, the average contract was paid up in three and one-half years if the payments were regularly made. Very few sales were for cash. During the years under consideration, defaults in the payment of the contracts ran as high as 30 per cent and 40 per cent of sales.

These lots were sold by petitioner on written contracts which recited that "If the purchaser shall first make the payments and perform the agreements hereinafter mentioned on the part of the purchaser to be made and performed, the seller will at the time hereinafter mentioned convey and warrant to the purchaser in fee simple, free of incumbrances, not hereinafter excepted, by a good and sufficient warranty deed, the following real estate," etc. The contract recites that the purchaser shall pay all unpaid portions of installments of any special assessments, the premium on all insurance carried on buildings on the premises, any and all taxes, assessments, impositions, etc., or the cost of street improvements. Time is of the essence of the contract and in case of the failure of the purchaser to make his payments on time the contract shall at the option of the seller be forfeited. The contract further provided that it should not be placed on record and if placed on record by the purchaser it should at the option of the seller become null and void. No notes were executed to accompany or support the contract. The total cash payments received during each of the years 1923 through 1926, inclusive, in at least two-thirds of the sales made during each of those years, did not excees one-fourth of the purchase price.

Such contracts had no fair market value or readily realizable market value when received by petitioner.

Petitioner originally attempted to return its profits on the installment basis. This basis was rejected by the Commissioner, has been abandoned by the petitioner, and is not in issue. The Commissioner determined his deficiency by computing the profit on all sales upon a strict accrual basis and by including all contracts at full face value upon the date of their execution.

OPINION.

PHILLIPS: The sole question involved is whether the Commissioner properly computed taxable income by including in gross income, at face value, amounts to be paid in the future under contracts of sale made by the petitioner. The evidence leaves no doubt that these contracts had no fair market value or readily realizable market value when received. The Commissioner erroneously included such contracts. ; .

The deficiency letter sets out the computation of the net income as disclosed by the books of the petitioner and corrected by auditors. Adjustment is then made for taxes paid and deducted on the books, but which are not deductible in computing taxable income. There is then added the item of "profit deferred." The taxable income should be computed by eliminating this latter item. In other respects the computation made by the Commissioner is approved.

Decision will be entered under Rule 50.