Michael v. Commissioner , 16 B.T.A. 1365 ( 1929 )

EDWIN B. MICHAEL, ADMINISTRATOR D.B.N., ESTATE OF MIKE MICHAEL, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Michael v. Commissioner

Docket No. 25874.

United States Board of Tax Appeals

16 B.T.A. 1365; 1929 BTA LEXIS 2396;

July 17, 1929, Promulgated

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Evidence adduced by petitioner insufficient to overcome the presumption that the deficiency determined by the Commissioner is correct.

Andrew T. Smith, Esq., for the petitioner.

J. L. Backstrom, Esq., for the respondent.

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LANSDON

The respondent asserted a deficiency in the income tax of the estate of Mike Michael, deceased, for the year 1922, in the sum of $1,756.32. The petitioner, as administrator d.b.n., prosecutes this appeal and requests a redetermination of said tax, based upon the following alleged error:

That the respondent committed error in holding that certain real property, the title to which rested in the name of an agent, belonged to the decedent, and in adding to his reported income for said year the sum of $5,679.36 as profit to him upon a sale of said property, and the further sum of $1,766.65 as rentals collected therefrom during the taxable year.

FINDINGS OF FACT.

During the taxable year, and for many years prior thereto, the decedent, Mike Michael, was a resident of Paducah, Ky., and engaged in the hardware business in said city. Some time during the early part of 1922, decedent purchased certain improved real property located at No. 416 Broadway, Paducah, Ky., and caused the title to be taken in the name of Jake Biederman, a friend. Upon purchase of this property the decedent took immediate possession and, during the eight or nine months following, collected rentals therefrom inthe aggregate sum of $1,766.65, which was placed in the bank to his credit. Some time in the fall of 1922, decedent sold this property at a profit of $5,679.36, and, on September 13, 1922, Mollie Michael, the wife of decedent, deposited to her personal credit in the First National Bank of Paducah, the sum of $46,936.20. The items of rental and profit on the sale of the real estate, as above mentioned, were excluded from the income return made in behalf of decedent for 1922, and restored by the Commissioner upon audit thereof, thus giving rise to the deficiency asserted. It is conceded that, if the ownership of this property was in the decedent at the date of sale, the determination of the respondent is correct.

OPINION.

LANSDON: But few positive facts are established by the record. The decedent purchased the property, but neither the date nor price is shown. He took title in the name of his friend Biederman, and possession to his own account. He collected the rents and later sold the property at a price not definitely shown, but at a profit of $5,679.36. Some meager testimony to the effect that the decedent intended to give the property to the wife, or that he, at different times, said he had given it to her, and that she considered the property hers, was produced, but each witness admitted that no formal transfer of title or possession was made to the wife.

All authorities agree that to make effective a gift there must not only appear an intent on the part of the donor to part with the title, but also an actual passing of the title to donee by a delivery either actual or constructive, of the thing itself. Whatever may have been the intentions of the decedent with reference to giving the property to the wife, it is clear that no completed gift was ever in fact effected, unless it would be to the proceeds of the sale after the profit had accrued to the decedent. The petitioner has failed to produce evidence sufficient to overcome the presumption as to the correctness of respondent's determination, which we accordingly approve.

Decision will be entered for the respondent.