*2900 1. The petitioner's income from commission notes should be recomputed upon the basis of the fair market value of said notes when received in order to more clearly reflect its income. Brinkerhoff-Faris Trust & Savings Co.,14 B.T.A. 797">14 B.T.A. 797.
2. For failure on the part of the petitioner to adduce sufficient evidence in support of its allegation that capital stock of the Benton Land Co., its subsidiary, should be included in the computation of its invested capital, the findings of the respondent are approved.
3. The petitioner having failed to offer sufficient evidence to support its allegation that abnormal conditions affecting its business entitled it to consideration under the relief provisions of the Act, the respondent's findings are approved.
4. Taxes paid by the petitioner in 1920 which were not claimed as a deduction in the computation of its net income for that year may be deducted in computing the net income for that year.
5. The petitioner's net income should be increased by the amount of Federal income tax deducted by it for 1920 in computing its net income.
*801 This proceeding is for the redetermination of a deficiency in income and profits taxes for the calendar year 1920 amounting to $8,336.04.
The issues raised by the pleadings are:
(1) Whether the book value or the fair market value should be used as the basis for determining the income derived from certain so-called commission notes;
*802 (2) Whether the respondent erred in failing to include in the petitioner's invested capital $20,000, representing the capitalization of the Benton Land Co., its subsidiary;
(3) Whether the respondent erred in failing to recognize the existence of abnormal conditions in the petitioner's business growing out of the sale of a certain banking institution acquired by it in 1917; and
(4) Failure to include as a deduction in the computation of net income certain general, state, county, city, and school taxes paid in 1920 but not entered on its books of account until January of the following year.
At the hearing of this proceeding the petitioner moved to amend its pleadings to include an admission that it reported a deduction of $1,057.86, representing taxes paid during the taxable year; that after having*2902 made said deduction it discovered that the sum of $781 thereof was for Federal income taxes; that said amount was improperly deducted, and, therefore, the respondent is entitled to increase its net income for the taxable year by that amount.
FINDINGS OF FACT.
The petitioner is a corporation, organized and incorporated under the laws of the State of Missouri, with its principal offices at Clinton, where it is engaged in the mortgage investment and banking business. Its authorized capitalization is $105,000.
Loans are made by the petitioner, upon application therefor by its clients, at a specified rate of interest. Documents are prepared with a first deed of trust securing a note in the amount of the principal of the loan and the rate of interest is fixed at that amount which petitioner hopes to be able to sell the loan to an investor. A second deed of trust is prepared and is taken to secure an installment note for the difference between the rate of interest to be paid by the borrower and the rate provided in the first deed of trust. These notes, denominated by the petitioner as commission notes, were for many years prior to August 1, 1918, recorded in the petitioner's*2903 books of account at 75 per cent of their face value, as commissions earned on said transactions, and the remaining 25 per cent thereof was recorded in a sinking fund account. The method of handling these transactions was changed after August 1, 1918, and thereafter said commission notes were recorded at their entire face value. During the first 10 months of 1920 the petitioner took 5-year commission notes aggregating $25,408.05 in amount, and 10-year notes aggregating $1,312.50 in amount, making the total commission notes received during that period $26,720.55.
*803 The 5-year noninterest-bearing commission notes, hereinabove described, had a fair market value of 50 per cent of their face value and the 10-year notes had a fair market value of 40 per cent of their face value.
A corporation, known as the Benton Land Co., was organized in connection with petitioner, with an authorized capitalization of $25,000, for the purpose of taking title to land until it could be disposed of. The respondent, in his deficiency notice, disposing of the question of inclusion of that company's capital stock in the petitioner's invested capital, said, "As the Benton Land Company is a corporation*2904 in name only, used for foreclosure purposes, with no assets or liabilities, the capital stock would have no value and no addition to invested capital is in order."
The revenue agent, in his examination of January 24, 1925, increased the petitioner's income by $13,898.96, representing, as he explains, "Real estate commission notes being considered as income in the year collected and not in the year executed, the notes made during the year and entered in surplus are to be deducted from the book income and the notes collected during the year and entered in surplus in prior years, are to be added to the book income and the notes collected in 1920 being $13,898.96 in excess of notes made during the year, the book income is increased the amount of this excess." The action of the revenue agent was affirmed by the respondent in his deficiency notice of July 24, 1926.
The petitioner made a great many loans in the vicinity of Cisco, Tex. Located at that place was a banking institution with a capitalization of $50,000 and the principal owner, who resided about 20 miles therefrom, was in very poor health. The principal owner, being quite anxious to sell, offered the capital stock to the*2905 petitioner for $50 a share. The offer was accepted, the bank was acquired, and during the period 1917 up to and including a part of 1920 it was, through extra hard work, rehabilitated to such an extent that the petitioner was enabled to sell its stock for $200 a share. This transaction resulted in a profit to the petitioner of $44,756.53 exclusive of a dividend of $1,329 paid just prior to the sale.
The respondent states in his deficiency notice to the petitioner dated July 24, 1926, that "Your case has had the benefit of an equitable consideration and adequate relief has been afforded by the assessment of your profits tax under the provisions of section 328 of the Revenue Act of 1918."
The petitioner paid general, state, county, city and school taxes on or before December 31, 1920, amounting to $5,517.73, but due to an oversight said amount was not recorded in its books of account until *804 January, 1921, and, therefore, no deduction was claimed in 1920 nor in 1921 in the computation of its net income.
The petitioner deducted $1,057.86 in the computation of its net income for 1920 representing taxes paid in that year, which sum included $781 of Federal income tax.
*2906 OPINION.
MORRIS: The first contention urged by the petitioner is that the fair market value should be used as the basis for determining the income derived from commission notes. We have considered this question in , promulgated simultaneously herewith, containing a similar statement of facts, and have held that the income derived from commission notes should be computed upon the basis of the fair market value of said notes when received.
The second allegation of error herein was also considered in , where we held, as we are compelled to hold here, that the evidence was insufficient to support the allegation that the capital stock of the Benton Land Co. should be included in invested capital.
The third allegation of error urged by the petitioner is that the respondent erred in failing to recognize the existence of abnormal conditions affecting its business in the determination of its net income under the relief provisions of the Act. We are unable to understand why the petitioner should urge a further consideration of its case under the provisions*2907 of section 327 of the Revenue Act of 1918 when it appears from the respondent's deficiency notice that he has already recognized the existence of abnormalities and has granted relief under the provisions of section 328 of that Act. Since the rate used by the respondent under section 328 is not in issue, and relief has already been granted under that section, there is nothing further to consider on this question.
The fourth allegation of error pertains to certain tax payments amounting to $5,517.73 in 1920 which were not entered upon the petitioner's books until the following year and were not claimed as deductions in the computation of net income for 1920. We are satisfied from the evidence that the petitioner is entitled to the deduction claimed.
In recomputing the petitioner's net income there should be added thereto $781 which it admittedly deducted in error in the computation of its net income for 1920.
Judgment will be entered under Rule 50.