DocketNumber： Docket No. 3621.
Citation Numbers： 10 B.T.A. 1004, 1928 BTA LEXIS 3985
Judges： Maequette
Filed Date： 2/24/1928
Status： Precedential
Modified Date： 11/21/2020
*3985 Under the evidence
*1004 This proceeding is for the redetermination of a deficiency in income tax asserted by the respondent for the year 1918 in an amount less than $10,000. The petitioner alleges that the respondent erred (1) in determining that certain land sold by the petitioner in the year 1918 had a fair market value of less than $35 per acre on March 1, 1913; (2) in including in income the proceeds from a sale of land owned by the petitioner and another person as tenants in common in so far as the said proceeds resulted from the petitioner's "bidding in" a portion of the land sold; and (3) in holding that the sale of lands was not a sale on the installment plan.
At the hearing the petitioner abandoned the third assignment of error.
FINDINGS OF FACT.
The petitioner*3986 is an individual residing at Athens, Ga.
Between the years 1870 and 1881, the petitioner's husband acquired an undivided two-thirds interest in a tract of land in Madison County, Ga., containing about 1,756.3 acres and situated about seven miles from Danielsville, the county seat. Prior to March 1, 1913, the petitioner's husband conveyed to her by deed his interest in said land for a stated consideration of $3,000 and the assumption by her of a debt of $9,186.32. The remaining one-third interest in the land was owned by one R. L. Moss.
On March 1, 1913, about 200 acres of said land were cleared and under cultivation, principally in cotton. The remainder of the land was timbered largely in merchantable pine, hickory, and oak. The timbered land consisted of good soil and its value was largely due to the possibility of its being cultivated when cleared. The condition of the land was about the same in 1918 as it was on March 1, 1913.
On March 1, 1913, agricultural and economic conditions in Madison County, Ga., were excellent. Cotton, the staple product of the section, *1005 was bringing a good price and land values were high. Between 1914 and 1917 the price of cotton*3987 and of cotton land slumped. However, upon the entrance of the United States into the World War the price of cotton rose rapidly and cotton land values increased and were high in March, 1918. Both at March 1, 1913, and in 1918 the value of the lands herein mentioned was attributable in some measure to the fact that cotton farming in that vicinity was conducted largely by land-owning white people and not by negro tenant farmers as is common in some sections.
The fair market value of the lands mentioned was $35 per acre on March 1, 1913.
The relations of the petitioner and Moss as coowners of the tract of land mentioned were not harmonious, and litigation between them appeared probable, when on January 3, 1918, they and the American Land Co. entered into the following written contract:
This agreement, made and entered into this the third of January A.D. 1918, by and between Mrs. M. L. Hunnicutt, party of the first part, R. L. Moss, party of the second part, both of Clarke County, Georgia, and AMERICAN LAND COMPANY, a corporation with its principal office at Athens, Clarke County, Georgia, hereinafter referred to as "The Company,"
WITNESSETH, That whereas the said parties of*3988 the first and second part own in Fee Simple a certain tract or parcel of land containing 1,800 acres more or less and lying and being in Madison County, Georgia, and known as, and being all of the Madison Springs property, the said property being owned in the proportion of two-thirds by the party of the first part, and one-third by the party of the second part and, whereas the said Company is engaged in the business of subdividing, developing and selling land, it is therefore agreed between the parties hereto as follows:
FIRST, That the said parties of the first and second parts have employed and do hereby empower the said Company to develop, advertise, offer for sale and sell the above mentioned land, at any time or times between this date and January 1st, 1920, upon the conditions hereinafter named.
SECOND, That it is understood and agreed by all parties hereto, that there will be excepted from the above mentioned land, that property, with improvements thereon, lying around the Madison Spring proper, to the extent of not more than one hundred acres, which is to become the Fee Simple property of the said party of the first part and the said party of the second part hereby agrees*3989 to execute and deliver to the said party of the first part a Warranty Deed to an undivided one-third interest in this tract of land with improvements thereon, around the Spring proper, after the actual lines have been determined by survey, which lines are to be agreed upon by the party of the first part and the said Company and provided that the tract does not exceed one hundred acres. This deed for an undivided one-third interest is conditioned upon the said party of the first part paying to the said party of the second part in cash one-third of $25 per acre.
THIRD, That the said Company agrees to take charge of said land, to survey, subdivide, develop, advertise and offer for sale, all in accordance with the judgment of the said Company and the said Company also agrees to furnish all money necessary to develop, advertise, and offer for sale, said land and said Company is to keep a strict account of all such expenses. The expenses to be incurred only by the said Company.
*1006 FOURTH, That said land or any part thereof is to be sold at public or private sale, either or both and at such time or times within the time hereinbefore mentioned, as the said Company may deem*3990 best, upon any terms which the said Company may deem advisable to offer, provided that as much as one-third of the purchase price is to be paid in cash upon delivery of Bond for Title and no period longer than five years is to be allowed any purchaser on deferred payments and further that the notes for deferred payments shall bear 8% per annum interest from the date of possession.
FIFTH, That the notes for deferred payments are to be made payable to Mrs. M. L. Hunnicutt and R. L. Moss and delivered to the Athens Savings Bank together with the cash in excess of the expenses of this transaction, and the said parties of the first and second parts hereby authorize the said Company to direct the said Athens Savings Bank to credit the proceeds, from all of such notes, together with the cash, in the proportion of two-thirds to Mrs. M. L. Hunnicutt and one-third to R. L. Moss, until the said parties of first and second parts have been paid in full as hereinafter set out.
SIXTH, That the said parties of the first and second parts agree to execute all deeds, Bonds for Title and all agreements relating to the sale of said land or any part thereof.
SEVENTH, That the said Company agrees*3991 that it will not sell this property for less than an average price of $25 per acre for the entire property.
EIGHTH, That when said land has been sold, in accordance with the above agreement, then a settlement is to be had between the parties hereto as follows:
From the amount derived from the sale or sales in excess of $25 per acre, there shall be set aside a sufficient amount of cash to pay for the expenses of handling this transaction, then a sufficient amount of cash and notes to pay the said parties of the first and second parts $25 per acre for the entire property, excepting the part reserved around the Spring as hereinbefore set forth, for the party of the first part. After which all other cash and notes and land shall be considered profits and said profits shall be divided between the parties hereto in the proportion of one-sixth to the party of the first part, one-sixth to the party of the second part, and two-thirds to the said Company.
The guaranteed average price of not less than $25 per acre mentioned in the contract was not considered the fair market value of the land, that price being used only as a basis from which to determine the division of the proceeds of*3992 the sale, particularly the American Land Co.'s share.
Pursuant to the provisions of the contract set forth, the petitioner purchased from Moss his undivided one-third interest in approximately 100 acres of the land above described, and the remainder of the land, consisting of 1,656.3 acres, was surveyed and subdivided by the American Land Co., and in March, 1918, was offered for sale at public auction. At the sale the petitioner bid in and purchased four tracts containing 379.1 acres, paying therefor $13,587.25.
The petitioner received as her share of the proceeds of the sale of all of the land the amount of $32,652.38 in cash and notes.
The respondent determined that the fair market value of the land mentioned was $18.96 per acre on March 1, 1913, and he computed the petitioner's profit on the sale accordingly.
*1007 OPINION.
MARQUETTE: The petitioner contends that the lands involved in this proceeding had a fair market value of $35 per acre on March 1, 1913, which should be taken as the basis for computing the gain or loss from the sale thereof in 1918. In support of her contention she introduced three witnesses, two of whom were real estate dealers who were*3993 familiar with the land and with other land and with other land values in the vicinity, and who testified that it had a value of at least $35 per acre on March 1, 1913. The respondent has rested upon his determination of value without attempting to controvert the evidence presented by the petitioner. On the record we are constrained to find that on March 1, 1913, the land had the value claimed by the petitioner.
The petitioner and Moss owned an undivided interest in 1,756.3 acres of land. By the contract of January 3, 1918, the petitioner purchased the one-third interest of Moss in 100 acres of said land, and the remainder of the land was sold at public auction. At the auction the petitioner, bidding as would any stranger to the sale, bid in and purchased 379.1 acres for $13,587.25. The petitioner could not derive a profit from this sale of 379.1 acres, neither could she sustain a loss, because she sold nothing as far as they are concerned. The only effect at the auction as to this acreage was to establish the price at which the petitioner purchased the undivided interest of Moss therein. What the petitioner did was to sell an undivided two-thirds interest in 1,277.2 acres*3994 and purchase an undivided one-third interest in 379.1 acres.
Coming now to determine whether the petitioner realized gain or sustained a loss on the sale, we find that on the basis of a value of $35 per acre her undivided interest in the 1,277.2 acres was worth $29,794.66 on March 1, 1913. She received, as her share of the net proceeds of the sale, $32,652.38, which included the amount of $9,058.17 (two thirds of $13,587.27), which she paid for her own undivided two-thirds interest in the 379.1 acres bid in by her. She therefore realized from her interest in the 1,277.2 acres actually sold by her, $23,594.20, which is less than the fair market value of that land on March 1, 1913, but greater than its cost to her. It follows that the petitioner neither realized taxable gain nor sustained a deductible loss. , and .