Richards v. Commissioner of Internal Revenue , 111 F.2d 376 ( 1940 )

HOLMES, Circuit Judge.

This case is here on petition to review a decision of the United States Board of Tax Appeals entered July 8, 1939. The opinion of the board is as yet unreported. The question is whether the annual rental of two residences should be included in the taxable income of petitioner’s community for 1935.

The petitioner and his wife, Mrs. Loretto Richards, owned all of the capital stock (except qualifying shares) of R. & L., Inc., created under the laws of Louisiana. This corporation owned a residence in New Orleans, La., and a summer residence in Bay St. Louis, Miss., which were occupied by petitioner, his wife, and their children, without the payment of any rent for the use thereof and without including the rental value thereof in his income tax for the year 1935.

One half of the rental value of the two residences was added to petitioner’s income for that year as a deficiency assessment. A similar deficiency for the other half was made against petitioner’s wife, as both were residents of Louisiana, where the law of community property prevails, and the assessments were upheld by the board.

A similar petition to review on behalf of the wife was presented at the same time, and what we say in this opinion applies with equal force to her case.

It appears that the purpose of having the title to the property in the corporation was not to enable it to deduct from gross income items which could not be deducted by an individual, but was for the purpose of creating interests which would be readily transferable, and in order to provide a family home for petitioner’s minor children in case of his death or the death of his wife. The board held that the purpose of the transfer was immaterial, so we have here no element of a fraudulent intent to escape the tax by the use of a corporate device. It is also apparent that, if we should pierce the corporate veil and regard petitioner or his wife, or both, as owners of the property, we should find the taxpayers occupying their own homes, on which no rent would be due. It further appears that there was no contract, either express or implied, with R. & L., Inc., or any other person, for the payment of rent for the occupancy of either house.

The petitioner was president of the corporation, but there is no evidence that he received any salary from it, or that the rental value of the two properties was to be received by h'im as part compensation for services rendered by him or his wife; and the board made no such findings. It merely held that the petitioner actually received from the corporation the rental value of the premises; that this was not a gift to him by the corporation, but was income in the form of gains and profits within the all-inclusive definition in Section 22 of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 669.

We think the finding of the board that the use of the residences was not a gift is without substantial evidence to support it, but that the contrary plainly appears from the undisputed facts and is the only reasonable deduction that can fairly be drawn from such facts, all of which appear in the record by stipulation of the parties.

The decision of the Board of Tax Appeals is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. '