DocketNumber： Docket No. 6435.
Citation Numbers： 9 B.T.A. 932, 1927 BTA LEXIS 2478
Judges： Phillips
Filed Date： 12/28/1927
Status： Precedential
Modified Date： 1/12/2023
*2478 1. Stock issued to the petitioner, under the circumstances disclosed by the evidence,
2. Oral agreement between three individuals to purchase interests in a joint venture and later to equalize their holdings therein
3. The Commissioner computed deficiencies in income tax for 1918 against both husband and wife and asserted the total amount against the husband. The husband appealed.
*932 Petitioner appeals for the redetermination of his tax liability for the calendar year 1918, the Commissioner having determined a deficiency of $35,585.50 for that year, only a portion of which is in dispute between the parties.
FINDINGS OF FACT.
The petitioner is an individual who resided during 1918 and now resides with his wife at*2479 Wichita Falls, Tex. In January 1918, one S. L. Fowler conveyed certain oil and gas leases to the petitioner as trustee. During said month a number of persons, including the taxpayer, entered into an agreement whereby they subscribed $12,000, which was paid to the petitioner, as trustee, for the purpose of drilling an oil well on the property mentioned. Petitioner subscribed *933 $500 to this fund. Among other subscribers were M. Fowler, $500, and W. D. Cline, a partner in the firm known as Burk Drilling Co., whose share of the subscription of that partnership was $200. It was agreed by the subscribers that if oil was found, the leases should be transferred to a corporation and stock prorated among the subscribers in the proportion which the amount subscribed by each bore to the total of $12,000.
The well was completed on July 26, 1918, and proved to be productive. Fowler, Cline, and the petitioner, being desirous of increasing their interest in the project, agreed orally that each should purchase such interest as they could at such price as the purchaser deemed advisable and that later they should equalize their holdings in the enterprise, whether then held or subsequently*2480 purchased, so that each should have the same interest. On August 12, 1918, on which date application for the issuance of a charter to the Fowler Farm Oil Co. was filed with the Secretary of State of Texas, the petitioner was the owner of an interest of $600, W. D. Cline was the owner of an interest of $850, and M. Fowler was the owner of an interest of $1,250. The additional interest of $100 acquired by the petitioner cost him $2,000.
The agreement of Fowler, Cline, and the petitioner to pool their holdings was carried into effect on September 9, 1918, at which time the corporation, the Fowler Farm Oil Co., was in existence and on which date certificates of stock were issued. The total par value of the capital stock of said corporation was $12,000 and there was issued to the petitioner 85 shares of such stock of the par value of $10 each. Such stock had a fair market value of $1,672.91 per share. Upon settlement of the pooling agreement referred to above, the petitioner paid $10,833.33. The Commissioner determined that the petitioner exchanged an interest of $850 in the original venture, which had cost him $13,333.33, for 85 shares of the stock of the corporation and had realized*2481 a gain of $128,964.53. The Commissioner computed the tax liability of the petitioner to be $21,203.86 and computed the tax liability of his wife to be the same amount. He determined that $5,822.22 had previously been assessed and that there was a total deficiency of $35,585.50. The notice of deficiency, which was mailed to the petitioner on July 17, 1926, so far as material, reads as follows:
Mr. J. A. Staley,
Wichita Falls, Texas.
(Wife: Mrs. J. A. Staley)
Sir:
The determination of the income tax liability discloses a deficiency of $35,585.50 for 1918 and an overassessment of $31,725.12 for 1919 instead of a deficiency of $35,585.50 and an overassessment of $30,658.14 for 1919 as *934 stated in office letter of May 19, 1925. The adjustments made are explained in the attached statement.
The petitioner herein was filed by J. A. Staley alone.
OPINION.
PHILLIPS: The pleadings present two question for decision: (1) The extent to which income was received by petitioner upon the organization of a corporation to take over the assets of a partnership, and (2) whether the respondent properly asserts against the petitioner a deficiency determined upon the income*2482 of his wife. The facts are stated in the findings and will not be repeated here.
(1) It is the contention of the petitioner at the time of the formation of the corporation, the Fowler Farm Oil Co., he received only 60 shares in exchange for his interest in the original project and that the additional 25 shares were not issued in exchange for any interest previously held by him. The parties are in agreement as to the fair market value of the stock at the time of its receipt.
Reduced to simple terms, the question presented is whether the 25 shares which are in dispute were received as the result of a purchase thereof or were received in exchange for an interest previously owned. We are of the opinion that the former is the true situation. The agreement between petitioner, Fowler, and Cline was that each should purchase such interest in the joint venture as he could obtain at a price which he deemed advisable and that later they should pool their purchases. It is clear that each was to act on his own responsibility and not as an agent for the others, even though the others were later to share in the purchase. There was no express trust created nor were the circumstances sufficient*2483 to impress an implied trust upon the interests then owned and those purchased later. There was merely an executory contracts between these individuals to purchase and sell and until this contract was performed each individual was the owner of the interest purchased by him. When the terms of the contract were carried out the joint venture had terminated and the corporation had come into existence. By reason of the previous agreement, the petitioner acquired 25 shares of stock in the corporation, paying therefor in cash pursuant to the terms of the agreement. This amounts to no more than a purchase of such stock pursuant to the terms of an outstanding agreement. Admittedly, the market value of the stock was much greater than the price paid, but such a purchase, however advantageous, gives rise to no taxable income. We are of the opinion that the gain derived from this transaction is limited to the difference between the fair market value of 60 shares of the stock and $2,500, the amount paid by the petitioner for such stock.
*935 (2) In the deficiency letter, which is addressed to the petitioner, the name of the wife is noted and deficiencies are determined as to both*2484 husband and wife. The Commissioner, however, appears to assert both dificiencies against the petitioner. The petitioner alleges that the Commissioner erred in adding to his tax liability that of his wife and asserting the tax of both against him.
Section 210 of the Revenue Act of 1918 imposes the tax upon each individual who receives net income in excess of the credits provided by law and it seems clear that the tax due from the petitioner does not include any deficiency which may be determined against his wife even though because of the laws of Texas any proceeding to recover such tax either from the community estate or from the wife's separate estate might have to be brought against the husband or the husband and wife, jointly.
In this proceeding we are concerned only with a redetermination of the tax liability of the individual who has filed his petition with the Board, not with the steps which must be taken to collect any tax which may be due from the wife. Nor are we concerned with the question whether because of the laws of Texas a notice to the husband is a sufficient notice to the wife to bind either the community or her separate estate or to serve as the basis of*2485 a proceeding by the wife for a redetermination of the deficiency determined against her. The husband is the only party petitioner and it is only his liability which concerns us. The final decision to be entered hereunder should include only the deficiency in tax computed upon the income of the husband as such income was determined by the Commissioner and as modified by our decision upon the first point involved.
Reviewed by the Board.