*224 Decision will be entered under Rule 50
As part consideration for the transfer of oil leasehold interests, the vendee agreed to procure the discharge of taxpayer-vendor's indebtedness of $ 100,000 to another. Thereupon the vendee gave to the other twelve notes due monthly and secured by the contract. The obligee did not release taxpayer from its indebtedness but agreed to treat the new notes as collateral to the taxpayer's obligation. In 1939 $ 33,332 of the notes were paid, and the remaining $ 66,668 of notes were paid in 1940, on or before their due dates. Held, the notes were income of taxpayer in 1939 to the extent of their fair market value; and such value was not less than their face.
*6 The Commissioner determined a deficiency of $ 12,829.27*225 in petitioner's income tax for 1939, and petitioner assails the inclusion in its gross income of $ 66,668 as a constructive receipt.
FINDINGS OF FACT.
Petitioner, a Texas corporation now in liquidation, filed its return for 1939 at Austin, Texas. Its accounts and returns were on the cash receipts and disbursements basis.
On December 23, 1937, Dee Davenport and his wife, Osceola H. Davenport, executed a $ 200,000 note payable on or before March 23, 1939, to Joe Ingraham for money borrowed for petitioner. The note was secured by a deed of trust on oil and gas leases, title to which was carried in the name of the Davenports, and by an assignment and conveyance by petitioner of oil payments. This property was in fact owned by petitioner. Payment of the note was guaranteed by petitioner. On January 8, 1938, the note was transferred by Ingraham to the M. W. Kellogg Co. by endorsement without recourse.
On August 10, 1939, no payment having been made on the note, a contract was made by petitioner and Dee Davenport and Davis & Co. whereby certain oil and gas leases in the Rincon Area, Starr County, Texas, were to be conveyed to Davis in consideration of its promise to pay $ 60,000 to *226 Transwestern Oil Co. in satisfaction of an indebtedness of Davenport and petitioner and to procure a release and discharge of the $ 200,000 obligation to Kellogg. Davis was unable to secure Kellogg's discharge of petitioner and the Davenports from their liability for the $ 200,000 indebtedness, and on August 10, 1939, the following agreement was executed by Dee Davenport, the petitioner, and Kellogg:
Reference is made to a proposed contract between D. D. Oil Co., Inc., Dee Davenport and Davis & Company, Inc., concerning certain oil and gas leases on lands in the Rincon Area, Starr County, Texas.
In connection with said proposed contract, The M. W Kellogg Company, herein styled Kellogg, has agreed with Davis & Company, herein styled Davis, on conditions as outlined in telegram of this date to Davis, to accept from Davis One Hundred Thousand Dollars ($ 100,000.00) on the present obligation of Two Hundred Thousand Dollars ($ 200,000.00) owed by Davenport to Kellogg and to extend the balance of One Hundred Thousand Dollars ($ 100,000.00) then remaining on said obligation upon receiving notes of Davis in said amount payable in equal monthly installments over a period of one (1) year.
*7 *227 In consideration of said agreement by Kellogg, made at the instance and request of Davenport, Davenport agrees as follows:
1. The notes of Davis shall be regarded as collateral to the obligation of Davenport, but the obligation of Davenport shall be subject to the other provisions of this agreement.
2. In the event the contract between D. D. Oil Co., Inc., Dee Davenport and Davis is not consummated and the $ 100,000.00 not paid by Davis to Kellogg, and the notes not given by Davis to Kellogg, all as provided for in said contract and in the telegram from Kellogg to Davis above referred to, then, in any one or more of said events. Davenport shall, on demand by Kellogg at any time after September 1, 1939, execute and deliver to Kellogg a deed of trust in usual and customary form covering all of the Davenport leasehold interests in said Rincon Area, as additional security for the obligation of Davenport to Kellogg, said Deed of Trust to be in addition to and not in substitution for the security now securing said obligation; provided, however, that said Deed of Trust shall contain a provision that there shall be no posting thereof for foreclosure prior to March 1, 1940.
3. In the event*228 the $ 100,000.00 is paid by Davis to Kellogg and the notes given by Davis to Kellogg on or before September 1, 1939, then, if at any time thereafter any interest assigned to Davis under the contract first herein referred to shall revert to Davenport because of relinquishment or cancellation or forfeiture or otherwise, Davenport will thereafter at any time on demand by Kellogg, execute a Deed of Trust and deliver the same to Kellogg covering all of Davenport's then leasehold interests in the Rincon Area, including the interests so reverting to Davenport, and the overriding interest reserved to Davenport, to secure all of the unpaid obligation of Davenport to Kellogg, such Deed of Trust to be in addition to and not in substitution for the security now securing said obligation; but in such event the maturity on the obligation of Davenport to Kellogg shall be extended to the maturity date of the final installment note given by Davis to Kellogg, and the notes of Davis, to the extent continuing as an obligation of Davis, shall be retained by Kellogg as further security on said obligation of Davenport.
4. In the event the notes are given by Davis to Kellogg as hereinbefore indicated, and*229 Davis makes default in the payment thereof or of any one or more of them, then if Kellogg forecloses under the Deed of Trust given to Kellogg by Davis. Kellogg, on acquiring the interest of Davis by such oreclosure, shall then transfer the same to Davenport and Davenport will then at once execute and deliver to Kellogg a Deed of Trust covering all of Davenport's then leasehold interests in the Rincon Area as above defined, to secure all of the unpaid obligation of Davenport to Kellogg, as additional security as hereinbefore provided for; and in that event the maturity of the obligation then remaining due from Davenport to Kellogg shall be extended to the maturity date of the final installment note given by Davis to Kellogg.
Wherever Davenport leasehold interests are referred to in this contract, it is intended to include all such interests whether owned by Dee Davenport or by D. D. Oil Company, Inc., and D. D. Oil Company, Inc., joins herein with reference to the obligations herein assumed by Davenport in connection with said leasehold interests.
On August 31 1939 a second agreement was made by Davenport, petitioner, and Davis, under the terms of which Davis acquired an option, expiring*230 September 6, 1939, to cancel the agreement of August 10, 1939 and to accept in lieu thereof a new contract, the provisions of which were fully set forth, providing for the conveyance to Davis of an *8 undivided one-half interest in certain leases, together with a like interest in all oil, gas, and distillate wells on the leased premises and all equipment used or held in connection therewith described in the agreement of August 10, 1939, subject to the reservation by the Davenports and petitioner of certain overriding royalties. Article IV describes the consideration to be paid by Davis as follows:
(a) Davis will, simultaneously with the conveyance and transfer to it by Davenport and Company pay to Transwestern in cash such amount as is owing to it by Davenport and Company under the undated agreement between them hereinbefore mentioned, such amount not to exceed in any event, however, $ 60,000.
(b) Procure and deliver to Davenport and Company, also simultaneously with the sale and transfer to Davis hereunder, a release and discharge to the extent of $ 100,000 of the obligation and liability of Davenport or of Davenport and Company to The M. W. Kellogg Company and to procure and*231 deliver to Davenport and Company at the same time an agreement on the part of The M. W. Kellogg Company to accept the primary obligation of Davis to the extent of the balance of $ 100,000 then remaining on the obligation of Davenport and Company to The M. W. Kellogg Company. Said balance shall be agreed to be paid by Davis to The M. W. Kellogg Company in equal monthly installments over a period of twelve (12) months from September 1, 1939 and shall be secured by a lien under deed of trust to be given by Davis to The M. W. Kellogg Company and its assigns covering the lease interest to be assigned to Davis hereunder, and an undivided one-half interest in all wells and improvements which may be placed thereon, except equipment which may be placed thereon and which is subject to liens in favor of the sellers thereof. Said deed of trust shall contain the usual and customary provisions but shall provide that no foreclosure proceedings shall be instituted thereunder unless and until payment of any of said notes shall have been in default for at least thirty (30) days.
(c) Secure and deliver to Davenport and Company, also simultaneously with the sale and transfer to Davis hereunder, a full*232 and complete release and discharge of the obligation of them or either of them to The M. W. Kellogg Company to pay and put up an amount not to exceed ten thousand dollars ($ 10,000) covering a portion of the cost of certain work in connection with a 23,000 acre ranch known as "El Javeline." The amount so paid by Davis shall constitute an advance to Davenport and Company which Davis may deduct and withhold out of the first over-riding royalties which accrue under the reservations hereinbefore set out.
The agreement further required Davis to commence the drilling of a well within 60 days, the location to be selected by Davis, and to continue drilling until 10 wells had been completed within a period of 180 days from the date of the assignment. Davis had reserved the right at any time after the completion of the first well to production, or its abandonment, to cancel the contract and reassign the properties to the Davenports and to petitioner, reserving a 7/16 interest in all production from the wells on the premises until reimbursed for all amounts paid to or for the account of the Davenports and petitioner and all amounts expended by Davis in drilling and equipping the wells, plus*233 interest. If Davis should fail to drill the 10 wells as provided, it was obligated, upon written request of Davenport and petitioner, to reassign the *9 leases to them, reserving to itself a 7/32 interest in all production from the wells until reimbursed for all amounts paid to or for the benefit of Davenport and petitioner, not to exceed $ 260,000, plus one-half of all amounts expended by Davis in drilling, completing, and equipping the wells drilled under the contract and, in conducting other operations, with interest at 5 percent. On September 8, 1939, the date of the assignment to Davis, there was one gas well on the property which had been drilled by petitioner and Transwestern. By December 31, 1939, Davis had drilled 6 of its 10 wells, 2 of which were being operated. The agreement also provided for the construction of a recycling plant by Davis, if the distillate reserves were such as to make the operation profitable. Davis was required to give written notice, within 240 days from the date of the delivery of the assignment of the leases, of its election to construct a recycling plant, and, in case of such election, was to complete the plant within 420 days from the*234 date of the delivery of the assignment. A recycling plant had not been built on December 31, 1939. The time for the construction of a recycling plant was twice extended, once for 18 months and again for one year.
Davis exercised the option granted in the agreement of August 31, 1939, and, in accordance with the terms of that agreement, made cash payments of $ 60,000 and $ 100,000, respectively, to Transwestern and to Kellogg. Davis also executed and delivered to Kellogg 12 promissory notes, aggregating $ 100,000, with interest at 5 percent, and drawn to the order of Kellogg, the first payable on October 1, 1939, and the others monthly thereafter. All of the notes were secured by and subject to a deed of trust executed by Davis on the properties acquired by Davis from Dee Davenport and petitioner under the agreement of August 31, 1939. This trust was expressly made subject to such contract. Kellogg acknowledged receipt of the cash and notes by an instrument dated September 8, 1939, reading in part as follows:
Whereas, Dee Davenport, D. D. Oil Company, Inc. and The M. W. Kellogg Company have entered into a contract of date August 10th, 1939 under and by virtue of which The M. *235 W. Kellogg Company has agreed to accept from Davis & Company, Incorporated, the payment of One Hundred Thousand Dollars for the account of Dee Davenport on the obligation evidenced by said note and to extend the balance of One Hundred Thousand Dollars then remaining on said obligation upon receiving notes of Davis & Company, Incorporated, in the aggregate principal amount of One Hundred Thousand Dollars payable in equal monthly installments over a period of one year, and secured by deed of trust executed by Davis & Company, Incorporated, to or for the benefit of The M. W. Kellogg Company on certain leasehold interests in the Rincon Area, Starr County, Texas, all as more fully set out in said contract of August 10th, 1939; and
* * * *
Whereas, said One Hundred Thousand Dollars has on this day been paid by Davis & Company, Incorporated for the account of Dee Davenport and the notes of Davis & Company, Incorporated, and the deed of trust securing the *10 same as above referred to have been executed by Davis & Company, Incorporated, and delivered to The M. W. Kellogg Company in compliance with the provisions of the contract of August 10th, 1939, above referred to and within the time*236 as so extended:
Now, Therefore, The M. W. Kellogg Company acknowledges the receipt of said One Hundred Thousand Dollars as part payment upon the note of Dee Davenport and O. H. Provines Davenport, above referred to, and certifies that said One Hundred Thousand Dollar payment has been credited upon said note and that the notes from Davis & Company, Incorporated, aggregating the principal sum of One Hundred Thousand Dollars, and the deed of trust from Davis & Company, Incorporated, securing the same, have been executed and delivered to The M. W. Kellogg Company and accepted by The M. W Kellogg Company in compliance with the provisions of said contract of August 10th, 1939. It is understood that the notes of Davis & Company, Incorporated, shall be regarded as collateral to the obligation of Dee Davenport and O. H. Provines Davenport to the extent that said obligation remains unpaid * * *.
On December 31, 1939, four of the Davis notes, aggregating $ 33,332, had been paid by Davis. The remaining 8 notes, aggregating $ 66,668, were paid in 1940, on or before their maturity dates.
In its return for 1939, petitioner included in income only the $ 160,000 cash payments made by Davis to Transwestern*237 and Kellogg. The Commissioner determined that gross income also included the $ 100,000 face amount of the 12 notes executed by Davis and delivered to Kellogg; and the $ 260,000 was treated as the basis for depletion.
The fair market value of the 8 notes when given by Davis to Kellogg in 1939 was $ 66,668.
OPINION.
In 1939 petitioner sold oil and gas leases to Davis & Co. in consideration of Davis & Co.'s promise to pay petitioner's indebtedness of $ 60,000 to the Transwestern Oil Co. and to secure the discharge of petitioner's indebtedness of $ 200,000 to Kellogg. The Transwestern debt of $ 60,000 was paid by Davis in cash, and there is no dispute about the treatment of that payment as a realization of income by petitioner. Davis also paid Kellogg $ 100,000 in cash on account of petitioner's debt, and that, too, is recognized as a realization of income by petitioner. The remaining $ 100,000 of petitioner's indebtedness to Kellogg was covered by a series of promissory notes given in 1939 by Davis & Co. to Kellogg. Of these notes, $ 33,332 were paid by Davis & Co. when due in 1939, and that amount also is recognized as taxable income of the petitioner in that year.
The remaining*238 $ 66,668 of notes, which were not due and were not paid by Davis & Co. in 1939, are the subject of the controversy. The petitioner assails the Commissioner's determination that this amount is included in its 1939 income.
The receipt of property in consideration for a sale is regarded as the receipt of cash to the extent of the value of the property (sec. 111 *11 (b), Revenue Act of 1938, ; ; , and the gain therein is income. So it would be clear, if the Davis notes had come to petitioner directly instead of going to Kellogg on account of petitioner's debt to Kellogg, that petitioner would have been taxable upon the gain when the notes were received; clearer even than if the purchaser had assumed a mortgage. Cf. . But the notes did not come to petitioner directly, and its position is that they may not be regarded as constructively received by it in 1939, since petitioner's obligation*239 was not discharged but persisted; and further that, even if petitioner should be charged with constructive receipt of the notes, still there is no income, since the notes were without market value and therefore were not the means of a realization of income.
It is true that petitioner's obligation was not discharged when Kellogg took the Davis notes. The notes were expressly said in the agreement to be "collateral" to the petitioner's obligation. But the legal fiction of constructive receipt treats the receipt by Kellogg as the receipt by petitioner; and clearly the receipt by petitioner directly of the Davis notes in consideration for the sale of the oil and gas leases would be none the less income, even though petitioner's obligation to Kellogg continued. The realization of income from the sale is not found merely in Davis' promise to pay petitioner's debt to Kellogg but in the constructive receipt by petitioner of property consisting of the Davis notes. This property is income to the extent of its value. ;
The face value of the notes was $ 66,668. They*240 were given under the agreement, and the remaining $ 33,332 of the $ 100,000 notes were paid when due in 1939. The $ 66,668 of notes were paid according to their terms within the following year, at or before their maturity. But petitioner says that in 1939 they were without market value, largely because they were secured by the contract and there was no assurance that the contract would be fulfilled or would be fruitful. This, however, is not enough to indicate that the promissory notes in 1939 were without value. The inference is rather the other way, that they had full value subject to the possibility of a rescission of the contract upon the happening of a condition subsequent. In 1939 there was no reason to treat this as probable, and very soon it turned out not to be a fact. We think the evidence does not establish that the notes were worth less than their face value. The Commissioner's determination that they were worth $ 66,668 is sustained.
Decision will be entered under Rule 50
*12 Leech, J., dissenting: The majority hold that the notes of a face value of $ 66,668 which were not due and were not paid by Davis in 1939 are taxable income to petitioner*241 in that year at that value. They support this conclusion on the premise that petitioner constructively received these notes in 1939 when given as "collateral" to petitioner's obligation to Kellogg, and that despite this latter condition the petitioner then realized taxable income in the amount of the face value of the notes, on the ground that petitioner has not overcome the presumption of correctness attaching to the respondent's determination that the fair market value of the notes was then equal to their face value.
The doctrine of realization of taxable income by its constructive receipt, of course, is to be sparingly applied. There does not seem to me to be any ground upon which this rule can be applied to petitioner here.
* * * if income has neither actually been received during the taxable year, nor the right to its receipt been definitely fixed during that year as to both the existence of an obligation on the part of the payor and the amount to be paid, such income is properly to be allocated only to that year in which it was in fact received or in which the right to receipt became fixed and liquidated. * * * [.
*242 See also , and .
As the majority concede, the notes in controversy were not received by Kellogg, absolutely. They were received by Kellogg, not in payment of but, as collateral to petitioner's obligation. Under such conditional receipt no value represented by the notes could have been used by Kellogg, by their sale or otherwise, to reduce or discharge petitioner's obligation unless and until petitioner defaulted. That use is the only premise upon which to support a finding that petitioner realized taxable income by the constructive receipt of the notes in 1939. But petitioner admittedly did not default on its obligation to Kellogg during that year nor at any other time. Thus any value represented by these notes could not have been used in the taxable year nor was it then ascertainable whether any such value could be used in the future to benefit the petitioner. The basis for holding that petitioner realized anything by constructive receipt of the notes in 1939 therefore falls.
The majority*243 apparently attempt to meet this argument by holding that, in any event, petitioner has failed to prove the notes were worth *13 less than face value as determined by respondent. This holding, if correct, would dispose of the question but only if the constructive receipt theory were abandoned and the decision premised on actual receipt of the notes by petitioner and its voluntary delivery of them to Kellogg. The record, I think, amply proves that the notes were without fair market value in 1939. I doubt their negotiability. Each of them on its face was subject to the terms of a deed of trust on the properties, executed by Davis, and that deed of trust was expressly made subject to the contract under which Davis & Co. could return the properties and recover the consideration paid therefor, together with interest thereon. And, at the close of 1939, Davis & Co. was seriously considering doing just that. But more important, petitioner did not voluntarily deliver the notes to Kellogg as "collateral" and therefore can not be held to have received them in fact. It can no more be said that petitioner received the notes absolutely than did Kellogg. They were all drawn to Kellogg. *244 They could not have been sold by petitioner. They could have been used by petitioner in no other way than they were used -- by the delivery to Kellogg as "collateral" to petitioner's obligation.
I do not think petitioner is taxable as having received the face value of the unpaid notes in 1939. See ; affd., ; .