*1202OPINION.
Steenhagen :The petitioner, admitting that in the years in question it sold 1,398 lots for an amount which does not appear in evidence, omitted from the gross income shown on its income-tax returns *1203for the years in question $139,800 of the amount so received. The respondent treated this amount as part of petitioner’s income for the years in question, and thus determined the present deficiency. The original petition alleged that this amount was a “ reserve for golf course maintenance ” and in an amendment to the petition filed at the hearing this designation is omitted and it is alleged that “ the petitioner recognized the existence of a trust liability for maintaining golf courses and clubs for members given privileges and set aside out of each lot sale $100.” The present theory of the petitioner’s claim is that the aggregate sum of $100 per lot is excluded from its gross income because it constitutes a trust fund, of which the petitioner is trustee, analagous to that of the Portland Cremation Association in 31 Fed. (2d) 843.
The evidence, in our opinion, does not establish a trust or anything less than full ownership by the petitioner of the entire amount received in the sale of each lot. Although it has been said that it needs no prescribed form of words to express a trust, Chicago Railway v. Des Moines Railway, 254 U. S. 196, it does not follow that circumstances wholly lacking in the manisfestation of a trust intent, either in words or conduct, and wanting likewise in any practical demonstration that a trust has been in operation, should be characterized by this Board as a trust for the purpose of releasing from tax such receipts as are otherwise plain business income. A trust is taxable as such by section 219, Revenue Act of 1926, and the fiduciary is required by section 225 to file a return. It is not suggested here that this petitioner is subject to these provisions, and from the present record clearly it was not.
The most that can be said from the evidence is that the petitioner was obligated by its contract to accord to lot owners the privileges of the golf course and the clubhouse, but this falls far short of saying that the petitioner was trustee in respect of any fund or other property in its possession, even if its refusal to provide such privileges might give rise to the equitable remedy of specific performance. There is nothing here to justify a decree of the existence of a trust or requiring its enforcement. For all that appears the petitioner rightfully might and did use the entire amount indifferently as its own without accountability to anyone. Even if the evidence established that a definite reserve had been set up by the petitioner for the maintenance of the golf facilities, such a reserve could not qua reserve be either excluded from gross income, Consolidated Asphalt Co., 1 B. T. A. 79; Uvalde Co., 1 B. T. A. 932, or deducted therefrom to arrive at taxable net income, William J. Ostheimer, 1 B. T. A. 18.
The petitioner introduced in evidence a newspaper advertisement purporting to prove that it had publicly undertaken in 1926 to estab*1204lish a trust fund. Despite the oral testimony as to its publication in 1926 there is irrefutable evidence on the exhibit itself to the contrary, for the petitioner’s advertisement itself contains a statement of oranges shipped throughout 1926 and, on the reverse side of the exhibit, is a statement of copyright in 1927. The exhibit is entitled to no weight.
The petitioner is, as the respondent admits, entitled to deduct its actual maintenance expenses paid or accrued, and these have, we must assume in the absence of complaint on that score, been deducted in the Commissioner’s audit and determination.
The cemetery cases to which the petitioner has referred, all, in our opinion, contained evidence of an undertaking far more specific, definite and binding, and, therefore, more susceptible of being construed as a trust than the circumstances at bar. The respondent’s determination is sustained.
Reviewed by the Board.
Judgment will be entered under Rule 50.