dissenting: I am unable to agree with the conclusion reached by the Board under what appears to me to be the plain undisputed facts of this case. ' • ' • '
In'1923 petitioner was a private corporation conducting a school for profit. What other powers and privileges it had do not appear, as its charter was not offered in evidence. It needed for the school more space and added facilities. The Eodeo Land & Water Co. owned 77.3 acres of land which it wished to sell. Petitioner did not need all of the' land for the school and it did not have the capita] to buy the whole tract. Some of its friends agreed to guarantee to a bank payment of certain loans it needed for money with which to make certain advance payments on petitioner’s contract to purchase the land. The Eodeo Land & Water Co. agreed to sell the land to petitioner. The loans from the bank were never made and the guarantors were never liable for any sum on account of their agreement. A scheme was worked out whereby petitioner was enabled to purchase the land without outside aid. A Mr. Gilchrist, a friend of the school, a realtor, surveyed, platted, and subdivided the land. 'A contract was entered into by the Bank of America, designated as trustee, the Eodeo Land & Water Co., designated trustor, and petitioner, designated beneficiary, in which it was recited that the trustor had agreed to sell to the beneficiary said land for $462,180, and that $100,000 thereof had already been paid by the petitioner from advanced sales of lots. Petitioner was to pay the remainder of the purchase price from the sale of other portions of the land, and petitioner was to bear the expense of laying out and grading the streets, the installation of water mains, telephone and electric poles, and other development costs. The trustee itself made no payments and none of the guarantors or the trustee at that time or any time thereafter made any payment on the purchase price of the land. The land was placed in the hands of the trustee in order to secure the payment by the beneficiary to the trustor and to facilitate the transfer of title to lots sold by the beneficiary. The scheme was carried out. The trustee held the funds received from the sale of lots; paid the expenses of Gilchrist for making, the subdivision; paid itself for the acceptance - of the trust *1126$250 and certain percentages on the sale price of lots executed by it. and a closing fee of $250 and paid and discharged the obligations of the petitioner, the beneficiary, to the Rodeo Land & Water Co., the trustor; then the trustee quitclaimed the schoolhouse lot and other portions of the 77.3 acres and paid the profits on the sales, more than $100,000, to the petitioner.
The property turned over to petitioner was not a gift and therefore is includable in gross income and section 213 (b) (3) of the Revenue Act of 1924, relied on by petitioner, is not applicable. The further provision of law, section 231 (6), relied on by petitioner, also is not applicable because the net earnings of petitioner inure to the benefit of the private shareholders of petitioner.