*1075 1. Where timber lands were held for investment purposes and in order to liquidate his investment the owner contracted with logging companies to cut, remove, and sell the timber, held that the owner was not in the business of buying and selling timber and therefore the timber sold constituted capital assets within the meaning of section 117(b) of the Revenue Act of 1934.
2. The income of three trusts created by the petitioner held not taxable to the grantor under sections 166 or 167, Revenue Act of 1934, although one of them contained a possibility of reverter if the beneficiary should die before reaching the age of 30 and Before the death of the grantor.
*178 This proceeding involves a deficiency in income tax of $4,471.91 for the year 1934. The two issues on which the petitioner appeals from the deficiency determination are (1) whether or not profits of $5,906.25 realized by the petitioner from sale of timber and losses *179 of $1,004.41 similarly incurred constitute gains and losses from the*1076 sale of "capital assets", and (2) whether or not the income of three trusts created by the petitioner is taxable to him.
FINDINGS OF FACT.
The petitioner during the taxable year was a retired business man, who before his retirement had been engaged in the manufacture of aircraft and also in the business of transportation by aircraft.
The petitioner received certain timber lands by inheritance from his father in 1890 and other timber lands by inheritance from his mother in 1910. Additional timber lands were acquired by purchase at various times from 1903 through 1912, and all of these lands were held by the petitioner for investment purposes.
In order to liquidate part of his investment, the petitioner, along with the coowners of some of the timber lands, entered into a contract on July 31, 1922, with the Greenwood Logging Co. for the logging of certain tracts of the land. The contract provided the terms and conditions under which the logging company should cut, remove, and sell the timber. The logging company agreed at its own expense to construct a logging railroad, logging camps, and other necessary structures, securing at its own expense the necessary rights of way*1077 for getting the logs to tidewater. The company agreed to cut and remove at least sixty million feet of logs each year during the term of the contract, with provisions in the contract for suspension of this requirement for periods when the market price of logs should fall below a specified average figure for a period of 60 days. It was also provided that the logging company should pay all taxes and assessments of any kind that should be levied against the land and the timber during the period of the contract. The contract further provided that all logs cut and removed from the land should be transported and delivered by the logging company at tidewater on Grays Harbor and sold by the logging company to purchasers at the current market rate, all costs and expenses of every kind incurred in cutting, hauling, removing, driving, transporting, marketing, protecting, securing, and delivering the logs to purchasers at Grays Harbor to be borne by the logging company without expense or charge directly or indirectly against the petitioner and the coowners of the timber. The contract provided that all money received by the logging company for the sale of logs should be divided by it between*1078 itself and the owners in the following proportions:
The Owners shall receive in payment for their interest in the logs, including the stumpage and stumpage rights, one-third of the gross proceeds of all logs sold, and the remaining two-thirds shall be retained by the Logging Company in full payment of its compensation for all services rendered and things done under this agreement.
*180 On July 1, 1933, the petitioner, in order to liquidate his investment in other of the timber lands referred to above, entered into a contract along with his coowners granting to the Crescent Logging Co. the right to cut, remove, and sell of the merchantable timber on the designated lands. This contract is similar in its general provisions to the contract with the Greenwood Co. summarized above. It provided that the logging company should, at its own expense, construct, maintain, and operate logging roads, spurs and logging camps; and that the logging company should be obligated to pay all taxes assessed against the lands or timber during the period of the contract. It provided that no interest in the lands except the easements necessary to the performance of the contract was conveyed thereby. *1079 It further provided that title to all the logs and other timber products to be cut or removed from the lands by the logging company should remain in the owners at all times until they were sold. It was agreed that all of the timber should be at the risk of the logging company during the term of the contract, and the logging company was obligated to pay for any loss or damage to the timber. The contract provided that all logs and other timber products cut or removed should be sold by the logging company on behalf of the owners, and the logging company assumed all risk of credit. The provision for payment to the owners is as follows:
The Owners shall be entitled to 33 1/3% of the gross selling price f.o.b. boom at Port Angeles, Washington, less discount allowed, for all fir, spruce and cedar logs and shall be entitled to $1.00 per M feet for all hemlock logs plus 33 1/3% of the amount, if any, by which the gross selling price of such hemlock logs f.o.b. boom at Port Angeles shall exceed $7.50 M. The Logging Company shall be entitled to the balance of the proceeds of all logs and other timber products taken from said lands, as full compensation for all services rendered under this*1080 contract.
Under the terms of the contract purchasers of the timber were to be billed separately for the amount due to the owners and remittance was to be made directly to the owners. The contract provided that the work of cutting and removing the merchantable timber should be completed on or before January 1, 1935, and if not completed by that date the quantity of merchantable timber remaining upon the lands should be purchased and paid for by the logging company upon the basis of the current market price of such logs or timber products f.o.b. boom at Port Angeles on January 1, 1935, and should be paid for within 60 days after determination of the quantity. The logging company was given 10 years within which to cut and remove such remaining timber purchased by it. The owners retained the right under the contract to require that their timber be boomed separately, to inspect the books of the logging company, and to have a representative *181 examine and check the logging operations to insure the performance of the terms of the contract.
Petitioner gave practically no time or attention to the operations under these contracts. During the taxable year he was absent from*1081 the state almost the entire time. He did not visit the operations at all during the taxable year, and has never done so except at the very beginning of operations under the Greenwood contract. Routine reports of sales and logs on hand came into the office maintained by him, where they were filed or recorded by an employee, which consumed only a negligible amount of the employee's time. During the taxable year, an inspector examined the logging operations to insure that the contract was being properly carried out, and from time to time the books of the logging company were checked by an employee of the petitioner.
During the taxable year the petitioner realized profits of $5,906.25 from sales pursuant to the contract with the Crescent Co., and a loss of $1,004.41 from sales pursuant to the contract with the Greenwood Co., or a net profit from both of $4,901.84.
The petitioner at various times from 1930 to 1934 created three trusts, which will be referred to as the "W. E. Boeing, Jr., trust", the "Copper trust", and the "Cranston Paschall trust." The W. E. Boeing, Jr., trust was created on January 10, 1930, by the delivery of $20,223.37 to three trustees composed of the Pacific*1082 National Bank of Seattle, W. E. Boeing, and his wife, Bertha Boeing, to hold and manage for the benefit of W. E. Boeing, Jr., son of the trustor. The trust instrument provided that the fund should be invested and the income accumulated and added to the principal of the trust estate until the beneficiary should reach 21; that thereafter the income should be distributed quarterly to the beneficiary until he should attain the age of 30; that thereupon the trust should terminate and the entire trust estate, less administration expenses, should be distributed to the beneficiary, W. E. Boeing, Jr. The trust instruments further provided that if the beneficiary should die before reaching the age of 30 the trust should terminate and the entire trust estate should be distributed to the trustor, or, if the trustor should have theretofore died, then to the residuary legatees under the will of the trustor, or, if intestate, to his heirs at law under the laws of Washington. During the year 1934 the income of this trust was $1,908.35, none of which was distributed, since the beneficiary, W. E. Boeing, Jr., was still a minor.
The Copper trust was created by the petitioner on April 30, 1932, and*1083 W. E. Boeing, Jr., was likewise the beneficiary of this trust, the trustees being the same as in the foregoing trust. Its corpus consisted chiefly of certain shares of stock in copper companies. It *182 provided for the accumulation of the income therefrom until the beneficiary should reach 21; the quarterly distribution of the income to the beneficiary thereafter, with power in the trustees to withhold the distribution under certain conditions; and the termination of the trust and the distribution of the entire trust property to the beneficiary when he should attain the age of 30. If the beneficiary should die before reaching the age of 30, the trust should be terminated and the trust estate distributed to his issue if any; failing issue, the trust estate should be distributed to the beneficiary's mother, Bertha Boeing, or, if she were not living, then to Nathaniel Paschall, Jr., and Cranston Paschall, share and share alike, or, if they or either of them were deceased, to his or their issue, or, if either were deceased without issue, his share to go to the survivor, and if both were dead without issue the trust estate was to be distributed to those who would take the separate*1084 personal estate of W. E. Boeing, Jr., under the intestate laws of the State of Washington. During the year 1934 the income of this trust was $1,137.31, none of which was distributed, since the beneficiary was still a minor.
The Cranston Paschall trust was created by the petitioner on November 23, 1934, with the same three trustees as in the case of the other two trusts. It provided for distribution of the net income thereof in the discretion of the trustees until the beneficiary, Cranston Paschall, should reach 21; distribution of the net income to the beneficiary quarterly thereafter, with discretion in the trustees to withhold it if they deemed it harmful to the beneficiary or if he were conducting his affairs in a wasteful or improvident manner; termination of the trust and distribution to him of the entire estate when the beneficiary should reach the age of 30. If the beneficiary should die before reaching 30 the trust should terminate and the trust estate should be distributed to his issue if any; failing issue, the trust estate should be distributed to his mother, Bertha Boeing, or if she were dead then to W. E. Boeing, Jr., or if he were dead then to those entitled to*1085 the separate personal estate of W. E. Boeing, Jr., under the intestate laws of the State of Washington. The net income of this trust for the balance of the year 1934, in which it was created, was $278.49, none of which was distributed to the beneficiary, Cranston Paschall.
OPINION.
ARUNDELL: The two issues are whether certain gains and losses from the sale of timber constitute gains and losses from the sale of capital assets as defined by the statute, and whether the income of the three trusts described in our findings of fact is taxable to the petitioner as grantor.
*183 As to the first issue, the petitioner realized a gain of $5,906.25 during the taxable year from sales of timber pursuant to the contract with the Crescent Logging Co., and a loss of $1,004.41 from sales pursuant to the contract with the Greenwood Logging Co., and the question is whether these gains and losses resulted from the sale of "capital assets" within the statutory definition. (Sec. 117(b), Revenue Act of 1934.) That definition is as follows:
(b) DEFINITION OF CAPITAL ASSETS. - For the purposes of this title, "capital assets" means property held by the taxpayer (whether or not connected*1086 with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.
There is no question that "sales" of timber occurred as required by section 117(a) of the same act, rather than mere "leases" as is the case in the disposition of oil where the land is retained. See ; cf. , and ; affd., . The controversy is limited to whether or not the timber sold constituted "stock in trade of the taxpayer" or "other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year", or "property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business." In any attempt to apply the descriptive clauses of the statute to the property here involved, it is plain*1087 that none of them apply. The timber was not stock in trade of the petitioner for he was not engaged in the trade or business of buying and selling timber. If timber can in any event be included in inventory, it could not be included in the inventory of this taxpayer inasmuch as he was not engaged in a business which permits the use of inventories for tax purposes. The timber was not held for sale to customers in the ordinary course of the taxpayer's trade or business. This clause connotes a business regularly carried on and property continuously held out for sale rather than as here - casual sales. Cf. , and .
The record shows that during the taxable year the petitioner was not actively engaged in any trade or business as those terms are ordinarily understood. His chief business had formerly been aviation, but he had retired from business and was absent from the state almost the entire year. His business, if any, during the taxable year could be described only as management of his investments. So far as the record shows he had never been in the business*1088 of buying and selling timber or timber lands. The original tracts here involved had *184 been obtained by inheritance and tracts which were purchased later had been held along with the former for investment purposes since 1912. The sales here were not part of a business of buying and selling timber, but merely a liquidation of part of the petitioner's investments in timber. The timber was not held primarily for sale to the customers of any established trade or business of the petitioner's. There was no continuous course of dealing with a group of regular buyers which would be necessary to the conclusion that the timber was held for sale to customers in the ordinary course of trade or business. The sales of timber from the tracts of land here in question were isolated transactions by the petitioner, involving merely casual buyers, as distinguished from "customers."
The respondent's argument that the petitioner was engaged in the trade or business of buying and selling timber is based on the fact that the petitioner used employees, agents, or independent contractors in effectuating this liquidation of his investment. We do not think the respondent's conclusion can be predicated*1089 upon those facts alone. It is true that the petitioner engaged independent contractors, the logging companies, to put the timber in salable condition by cutting it and delivering it at tidewater, and that his employees or agents recorded and checked up on the performance of the contracts. But employees, agents, or brokers are often employed to effectuate a sale by one who is not in the regular business of buying and selling. Common examples are the retention of real estate agents or stockbrokers to sell property which has been held purely for investment. Even independent contractors, such as repairmen, are often employed to put investment property in salable condition, but that fact alone would not operate to put the seller into the trade or business of buying and selling such property. However, even if the utilization of the services of others in effectuating isolated transactions of sale could be said to require the conclusion that the owner of the property is engaged in trade or business, we are of the opinion that there was not in the case at bar any such regularity and continuity of dealing in the specific property as is required by the statutory provision invoked by the*1090 respondent. Such regularity and continuity of dealing are in our opinion necessary to the concept of sales to customers in the ordinary course of business which is embodied in the statute. For the foregoing reasons, we are of the opinion that the timber sold was not stock in trade, or property which should properly be inventoried, or property held primarily for sale to customers in the ordinary course of petitioner's trade or business. Since the property does not fall within the exceptions contained in section 101(c)(8) quoted above, it constituted capital assets and its sale gave rise to capital gain under one contract and resulted in a capital loss under the other.
*185 In cases relied on by the respondent, the corporations were not merely liquidating investments, but were engaged in the regular business of mining. ; . Cases in which sales of timber have been held to constitute sales of capital assets within the statutory definition are *1091 , and Similar to the instant case, those were cases of sales of timber held for investment by persons not in the regular business of buying and selling timber. The fact that in those cases the timber was sold directly to loggers or to vendees who would themselves remove it does not, in view of what we have said above, serve to distinguish those cases in principal from the present one.
In regard to the second issue, arising from the respondent's determination that the income of the three trusts described in our findings is taxable to the petitioner, the deficiency notice states only that the trusts "come within the purview of trusts defined in sections 166 and 167 of the Revenue Act of 1934." On brief the respondent waives argument on this issue except to point out that in the W. E. Boeing, Jr., trust there is a possibility that the current income which is being accumulated for the benefit of W. E. Boeing, Jr., will be distributed to the petitioner along with the rest of the trust estate if W. E. Boeing, Jr., dies before he reaches 30 and the petitioner is himself alive at that time. Respondent argues*1092 that this places the trust income within the provisions of section 167(a)(1) of the Revenue Act of 1934, which provides:
(a) Where any part of the income of a trust -
(1) is, * * * held or accumulated for future distribution to the grantor;
* * *
then such part of the income of the trust shall be included in computing the net income of the grantor.
In our opinion this provision does not cover the case before us. We do not think that the language of this section covers or was intended to cover the situation where there is no definite provision for such future distribution to the grantor, but only the bare possibility that upon certain contingencies over which the grantor has no control the corpus and accumulations may revert to him. This is what has been called a mere "possibility of reverter" in the estate tax cases (; ), and we do not think that where such bare possibility exists the income of the trust may be said to be "held or accumulated for future distribution to the grantor", within the meaning of section 167. That section, *1093 being one which cuts across the usual concept of the separate entity of trusts, should not, we think, be given any broader interpretation than *186 its terms require (cf. ), and if article 167-1 of Regulations 86 purports to include in the scope of the statute such a trust as the one before us we think the regulation is an erroneous interpretation of the statute.
The argument just discussed could only apply to the W. E. Boeing, Jr., trust, since under the terms of the other two trusts there was not even a possibility of the accumulated income reverting to the grantor. Upon termination of those trusts upon any of the contingencies specified in the trust instruments, the distribution of the corpus and accumulated income was directed to go to others than the grantor.
In view of the blanket determination by the respondent that all three trusts fall within sections 166 and 167, it remains for us to point out that no power is retained under any of them to revest title in the grantor, wherefore section 166 does not apply, nor is there any provision for current or future distribution of the income to the grantor or for its application*1094 to the payment of premiums on insurance on his life, wherefore section 167 does not apply.
Decision will be entered under Rule 50.