Crichton v. Commissioner , 42 B.T.A. 490 ( 1940 )

KATE J. CRICHTON, PETITIONER, v. COMMISSIONER OF INTERNAL. REVENUE, RESPONDENT.

Crichton v. Commissioner

Docket No. 97025.

United States Board of Tax Appeals

42 B.T.A. 490; 1940 BTA LEXIS 994;

August 7, 1940, Promulgated

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Petitioner exchanged oil, gas, and mineral rights in certain lands for an undivided one-half of the fee in a parcel of improved realty. Held, the properties conveyed were of a like kind as required by section 112(b)(1) of the Revenue Act of 1936 and the gain realized on the exchange is, therefore, not taxable.

T. A. Dubourg, C.P.A., for the petitioner.

D. D. Smith, Esq., for the respondent.

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ARUNDELL

The respondent has determined a deficiency in income tax for the calendar year 1936 in the amount of $628.66, only a portion of which is in dispute. The issue for decision is whether the transfer by the petitioner of certain mineral rights in exchange for a parcel of improved realty constitutes an exchange of properties of like kind on which no gain is recognized pursuant to section 112(b)(1) of the Revenue Act of 1936.

The facts have been stipulated and those parts of the stipulation necessary to an understanding of the case are set out hereinafter with our other findings.

FINDINGS OF FACT.

The petitioner is an individual, residing in Minden, Louisiana.

Prior to the death of her husband in 1917, the petitioner owned a community interest with him in certain lands situated in the Parish of Webster, Louisiana. In that year, on the death of the husband, the petitioner's three children each acquired by descent an undivided one-sixth interest in the property mentioned above, an undivided one-half interest remaining in the petitioner.

On July 11, 1933, petitioner acquired a one-half interest and each of her three children acquired a one-sixth interest in certain realty, improved by a hotel building, situated in the city of Minden, Louisiana. On July 17, 1936, the three children transferred to the petitioner their undivided three-sixths interest in this realty, and in return therefor on July 28, 1936, the petitioner conveyed to her three children an undivided three-twelfths interest in the "oil, gas, and other minerals in, on and under and that may be produced from the land in Webster Parish, Louisiana, heretofore described as that owned by the petitioner with her husband before his death in 1917. By recital in the deeds it was stated that the consideration for each transfer was the property received in return by the transferor.

The one-half interest in the improved realty conveyed to the petitioner in July 17, 1936, had value of $15,357.71 at the time of the transfer. The basis of the petitioner's interest which was transferred to her children on July 28, 1936, was zero on the date of the transfer.

The petitioner realized no taxable gain within the year 1936 on the exchange of properties described above.

OPINION.

ARUNDELL: Our decision is asked on the question of whether the petitioner is taxable on the exchange of properties made between herself and her three children in the taxable year. The petitioner claims that no gain from the exchange is cognizable under section 112(b)(1) of the Revenue Act of 1936, which provides as follows: SEC. 112. RECOGNITION OF GAIN OR LOSS.

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(b) EXCHANGES SOLELY IN KIND. -

(1) PROPERTY HELD FOR PRODUCTIVE USE OF INVESTMENT. - No gain or loss shall be recognized if property held for productive use in trade or business or for investment (not including stock in trade or other property held primarily for sale, nor stocks, bonds, notes, choses in action, certificates of trust or beneficial interest, or other securities or evidences of indebtedness or interest) is exchanged solely for property of a like kind to be held either for productive use in trade or business or for investment.

The contention of the respondent by which the issue is joined is that the properties exchanged were not "of a like kind" as required by the statute and that the gain is therefore to be recognized and taxed as provided in section 117 of the Revenue Act of 1936.

The words "like kind" are stated by the regulations to refer to the "class", "nature or character" of the property and not to its "grade or quality." The meaning of the words is further particularized there by examples of nontaxable exchanges, including the transfer of unimproved for improved realty or the assignment of a 30-year lease in return for the conveyance of a parcel of realty. See Regulations 94, art. 112(b)(1). Similar interpretations have appeared in all of the regulations beginning with Regulations 62 issued under the Revenue Act of 1921. In , involving an exchange of improved urban realty for a ranch, we held that article 1566 of Regulations 62 correctly interpreted the statute. We have followed the similar, currently applicable, regulations in later cases. See ; .

The respondent relies on . In that case there was an exchange of an oil payment for an overriding royalty and we held that the properties were not of like kind within the meaning of the statute. One of the material elements that prompted our conclusion was that under the oil payment given in exchange there was a limitation on the amount that the taxpayer was to receive, whereas its rights under the overriding royalty were to continue as long as oil or gas might be produced from the property. No such difference in facts exists in the present case and, therefore, the Midfield Oil decision is not controlling here.

The regulations and the above cited cases establish certain fairly broad classes of property within which nontaxable exchanges may occur. The properties which were transferred reciprocally in the present case seem to us to fall together within a single one of the classes which are thus plotted. Both were interests in realty; under either the general law or the law of the State of Louisiana the interest which the petitioner's transferee in the exchange received was a real right in the land. ; ; ; ; ; ; ; ; 1 Thornton, Law of Oil and Gas, sec. 20(b). The respective natures of the properties exchanged in this case, therefore, may be seen to coincide and accordingly our decision must be for the petitioner.

Decision will be entered under Rule 50.