*205OPINION.
Tkammell: The taxpayer contends that the leasehold in question was paid in for stock and was worth $100,000, and that that sum should be included in invested capital. The Commissioner contends that (1) the leasehold was not in fact paid in for stock of the taxpayer ; (2) if it was paid in for stock the value, for invested capital purposes, could not exceed the cost to the previous owner under the provisions of section 331 of the Revenue Act of 1918; and (3) it had no value in excess of the stipulated rentals at the time acquired.
We will discuss the last contention first. The taxpayer, in support of its valuation, presented the evidence of several witnesses whose training and experience in dealing in such properties qualified them to express their opinions with respect to values. They expressed opinions that the value of the leasehold at the time of acquisition was from $100,000 to $125,000. We believe, however, that these witnesses did not take into consideration all of the actual condi-tioils and circumstances existing which would reflect the actual cash *206value of the lease, but if they did, we must bear in mind that it is only the actual cash value of the leasehold at the time it was alleged to have been paid in for stock that is material. In other words, the amount that a willing purchaser would give and a willing seller would take. In this appeal we find an experienced buyer and seller dealing at arm’s length, negotiating back and forth, who finally, after considerable negotiations, agreed upon the terms and conditions that another theatrical organization (former lessee), although well able financially to pay the rental and although it desired to have a theatre in that locality, refused to accept. From the evidence it appears that Mr. Gulesian built the theatre in 1911 on property held by him under a long-term lease. In 1913 he leased it to the Loew interests for $32,000 for five years, with a renewal privilege for five years more at $37,500. He retained his private office in the theatre; he had a box reserved for his exclusive use and required weekly payments of the rent. He was in daily contact with the business and must have known what business the theatre was doing or was capable of doing. In fact his close personal contact was such that it was objectionable to the Loew interests. It being doubtful whether the Loew interests would renew at $37,500 under the terms of tne lease, we find Gulesian, early in 1918, searching for another tenant. He employed an experienced theatrical broker to obtain a tenant. This broker put him in touch with Giles, who was also an experienced theatrical man. Their negotiations resulted in a lease at $37,500, containing practically as stringent terms as those objected to by the Loew interests. Gulesian required the taxpayer to pay $5,000 advance rent and to deposit $15,000 collateral as security for future rentals. The Loew interests must have been familiar with the future possibilities of this location for a theatre, as they had been operating there for five years. They refused to renew at $37,500. -A representative of the Loew interests testified that he was surprised that Gulesian could get another tenant at the same terms. So we have a situation where former lessees refused a renewal on substantially the same terms accepted by the taxpayer; where the lessor being fully advised of the conditions voluntarily made the lease; where an experienced theatrical broker, acting for the lesser, sought the best terms for his client; and where the taxpayer, under the management of an experienced theatrical man, accepted the lease and on the terms mentioned. All parties were dealing at arm’s length. How, under such conditions, can we hold that the actual cash or market value at that time was in excess of the amount arrived at by the parties ? This evidence of the actual transactions at the time, under the circumstances, to our mind, has greater weight than the opinions of witnesses as to value. At the time the lease was *207executed we are not convinced that it had an actual cash value in excess of the annual rentals. See Appeal of Saenger Amusement Co., 1 B. T. A. 96.
If it be conceded, however, that the lease had in fact the value claimed by the taxpayer, it is not shown to have been acquired for stock. The stock was issued to Giles, his wife and two brothers. These individuals did not have the lease, nor did Giles have it. The corporation was the lessee from Gulesian and it issued no stock to him. The most that can be said is that Giles had a verbal agreement for the lease and he desired to have the lease made to the corporation instead of to himself. It was only after considerable negotiations and. additional consideration, in the way of advance rent and collateral, that the landlord finally consented to make the lease to the corporation. There is no evidence that any option to lease was assigned to the corporation, and if it was it is not shown to have had any value as the landlord did not feel himself bound and did not make the lease to the corporation based on any option, but made an entirely new arrangement on different terms.
On either of the above propositions, the determination of the Commissioner must be approved, and it is not necessary to discuss the contention of the Commissioner as to the applicability of section 331 of the Revenue Act of 1918.
The deficiency is $1,077.62. Order will he entered accordingly.