*656OPINION.
TRAmmell :The principal issue in this case is whether or not petitioner realized taxable income in 1928 from the transactions with its landlord, the Terminal Corporation, whereby the petitioner transferred the Alamo Street property to the Terminal Corporation and the latter canceled the balance of the petitioner’s indebtedness.
In 1928 the petitioner owed the Terminal Corporation $107,880.77 for unpaid rent and interest thereon. It was then insolvent and unable to pay this indebtedness. An agreement was reached by which the petitioner was enabled to continue its business and the Terminal Corporation to rent its warehouse, but at a reduced rental.
The petitioner’s indebtedness was discharged by its transferring to the Terminal Corporation the Alamo Street property, which had a depreciated cost to petitioner of $39,513.42, and was subject to a mortgage of $25,000, which the creditor corporation assumed. At the time of the transfer, the petitioner’s equity in the property was $14,513.42. The Terminal Corporation canceled the balance of the indebtedness in the amount of $93,367.35, which amount the respondent contends constitutes taxable income to the petitioner.
In our opinion, the legal effect of the transaction, whereby the petitioner transferred real estate to the principal creditor in full satisfaction of its indebtedness, was to constitute such transfer a sale of the real estate, on which sale the petitioner realized taxable profit in an amount equal to the difference between the depreciated cost of the real estate and the aggregate amount of indebtedness canceled. See Abe Ackerman, 27 B. T. A. 413; also Twin Ports Bridge Co., 27 B. T. A. 346.
Petitioner contends that the gain is the difference between the depreciated cost of the property and the fair market value when transferred in cancellation of the debt. But as we view the transaction the property was transferred in cancellation of the debt, not applied to the extent of its fair market value and the balance of the debt forgiven. Our view is in accordance with written instruments of the parties. It is not shown that these instruments did not fairly set out what was done. The contract does not refer to a forgiveness of a debt, but to a cancellation thereof in consideration of the transfer. In a sale of property the taxable gain is the difference between the selling price and depreciated cost, when acquired after March 1, 1913, not the difference between the cost less depreciation and the *657value of the property. What the acquiring company laid out for the acquisition of the property would be the basis in its hands on a subsequent sale.
This case does not involve a cash payment of a part of a debt and the forgiveness of the balance, a general composition of creditors, nor bankruptcy, nor a situation where the debtor was still insolvent or left without assets after the debt cancellation or forgiveness, but a transfer of property in cancellation of the entire debt, leaving the taxpayer solvent. The bookkeeping entries of the creditor, in which it set up the appraised value of the property on its books as being a pro tanto satisfaction of the debts, are contrary to the agreement of the parties that the entire debt was to be canceled by the property transfer. In any event it is the debtor before us, not the creditor. The petitioner, being the debtor, treated the excess over cost of property less depreciation as being taxable income.
We see no valid distinction between this case and our decision in the case of Twin Ports Bridge Co., supra, in which we held that where a corporation pays its debts with stock, the difference between the cost of the stock and the amount of debts satisfied constitutes income. It is true that in this case the taxpayer was insolvent prior to the transaction, but solvent afterwards. In that case the taxpayer was solvent both before and after the transaction. However a corporation while insolvent may still have income. The fact that a taxpayer may in prior years have operated at a loss and its debts exceed its assets does not prevent it in the taxable year from making a taxable gain by disposing of property for more than its cost.
But even treating the case for the sake of argument on the principle upon which the taxpayer relies, that is, a partial forgiveness of debt, in our opinion the taxpayer can not prevail. Assets were left cleared of debts to the extent of the amount forgiven and the taxpayer was enriched to that extent. If a taxpayer had real estate worth $10,000, with a mortgage thereon of $5,000, it would seem that by canceling the mortgage, leaving the property free, it would be equivalent to the receipt of cash to the extent of the mortgage, whether the taxpayer then be solvent or insolvent. The case of United States v. Kirby Lumber Co., 284 U. S. 1, and the case of Bowers v. Kerbaugh-Empire Co., 271 U. S. 170, as explained in the Kirby Lumber Co. case, support this view. The use of the capital asset, to wit its property which it used in having its indebtedness canceled or reduced, involves the use of capital in securing its enrichment to the same extent, in our opinion, as the use of money by the Kirby Lumber Company in buying back its bonds issued at par for less, thus giving rise to taxable gain.
*658See also the recent decision of the United States Circuit Court of Appeals for the First Circuit in Commissioner v. Coastwise Transportation Corp., 62 Fed. (2d) : 332, rendered after the Kirby Lumber Co. case, supra, and which reversed the decision of the Board at 22 B. T. A. 373, that the taxpayer derived no income from the purchase of two of its serial notes at less than face value.
In the view we take that the canceled indebtedness in excess of the depreciated cost of the real estate constituted income to the petitioner for the year 1928, it becomes unnecessary to consider the petitioner’s allegations in respect of the application of its net losses for 1926 and 1927, based upon the theory that the cancellation of the indebtedness did not constitute income, since the respondent applied said net losses against 1928 net income before computing the deficiencies.
The parties have stipulated that the petitioner is entitled to an additional deduction from gross income for 1929 on account of expenditures for club dues, as set out in our findings of fact. Said stipulation will be given effect in redetermining the deficiency for that year.
Reviewed by the Board.
Judgment will be entered under Rule 50.