*3277 Gain from the sale of real estate subject to a mortgage determined.
*291 The Commissioner determined a deficiency of $926.59 for the calendar year 1920. The petitioners alleged that he erroneously included $16,413.56 in their income on account of a sale of land whereas he should have included a lesser amount in this connection. At the hearing the respondent asserted a claim for an increased deficiency.
FINDINGS OF FACT.
The petitioners are husband and wife, residing at Okmulgee, Okla. During the first part of the year 1920 they owned some land.
The cost of that part of this land purchased since March 1, 1913, plus the March 1, 1913, value of that part acquired prior thereto, which value was greater than cost, was $12,160.61. They sold this land during the year and delivered a deed therefor to the purchaser in consideration of which the latter agreed to assume a mortgage of $6,000 on the land which the petitioners had given and which was then to run for two more years, pay $20,000 in cash on or before July 1, 1920, pay a "royalty" of $400*3278 a month for 7 months beginning July 1, 1920, and give 7 promissory notes each for $2,000, dated July 1, 1920, with interest at 6 per centum, one due on the first day of each succeeding month, all to be due in case of default on one, all secured by a mortgage for $14,000 subsequent in its lien to the mortgage for $6,000.
The purchaser paid $20,000 in cash on or before July 1, 1920, assumed the $6,000 mortgage, paid the $2,000 note due on August 1, together with $10 interest thereon, paid the $2,000 note due on September 1, together with $20 interest thereon, paid $1,000 in "royalties" and defaulted in all other payments. During 1920, the petitioners paid $5,000 as a commission on the sale. By the end of 1920 the unpaid notes and the mortgage securing the same had no value in excess of $4,000, the then value of the land over and abobe the prior mortgage for $6,000. The petitioners in 1922 again acquired title to the property and paid the $6,000 mortgage.
The Commissioner included a profit of $16,413.56 in the petitioner's income for 1920 on account of this transaction.
*292 OPINION.
MURDOCK: We must assume that the basis of $12,160.61 used by the Commissioner was*3279 correct and the mortgage for $6,000 given by the petitioners before they sold the property did not represent additional cost not accounted for in that basis. The petitioners in 1920 parted with a property which had cost them $12,160.61 and on which they had secured a loan of $6,000. In selling this land they had to pay a commission of $5,000.
The petitioners sold their land subject to the $6,000 mortgage. They concede that the land at all times during 1920 was worth at least $10,000 and was ample security for the mortgage. Thus, it is apparent that after the transfer the mortgage would be repaid not by the petitioners, but by either the owner of the land or by proceeds from a sale of the land on a foreclosure of the mortgage. Under these circumstances it was worth $6,000 to the petitioners to sell the land subject to the mortgage.
The petitioners' profit on the sale of their land for income-tax purposes should be computed as of the date of the sale. If the notes which the petitioners received were at that time worth their full face value, the profit from the transaction would have been considerably more than $16,413.56. The facts indicate that the petitioners realized*3280 profit from this sale in at least this amount.
The Commissioner seeks to have the deficiency increased, but has failed to prove facts which would justify an increase in the deficiency. We therefore leave the parties as we have found them.
Judgment of a deficiency of $926.59 for the calendar year 1920 will be entered.