*1886 The petitioner did not realize any taxable income from the transaction involved herein.
*254 This proceeding is for the redetermination of a deficiency in income tax asserted by the respondent for the year 1922 in the amount of $47,660.52 the deficiency arises from the inclusion the the petitioner's income of amount of $91,875 which the respondent determinee termined represented profit realized by the petitioner from the transaction hereinafter described.
*255 FINDINGS OF FACT.
The petitioner is an individual residing at San Francisco, Calif. During the year 1922 one Louis Titus and the petitioner were and had been for a number of years, president and vice president, respectively, of North American Consolidated, a corporation engaged in the production of oil. Titus and the petitioner had known each other for many years, and had been associated together in various ventures.
Early in the year 1922 Titus received notice that the United States Government would offer for lease, five half-sections of land in the Midway*1887 oil field, Kern County, California, and that bids would be received up to a date stated in the notice. Titus brought the matter to the attention of the petitioner and suggested that the leases might be valuable and that he and the petitioner ought to look into the matter. The petitioner agreed to this suggestion, and he and Titus viewed the land and decided to put in bids for leases. They at that time agreed orally that Titus would put in the bids and take and leases in his own name if his bids should be accepted, and that the petitioner would take and have a one-fifth interest therein. Titus went to Washington, put in a bid for the five leases and was awarded four of them. The other one-half section was leased to one James Crawford, who sold it to Titus for $2,500, together with a small royalty. Titus also acquired a lease covering 80 acres from one Wilkes, which gave him six leases covering 1,680 acres in the Midway oil filed.
On or about June 9, 1922 Titus organized, or caused to be organized, under the laws of Delaware, the Conservative Oil Co., to which he offered the six leases in consideration of the issuance to him of all of the capital stock of the corporation, consisting*1888 of 30,000 shares of no par value. This offer was accepted and the leases were conveyed by Titus to the Conservative Oil Co. and the capital stock of that corporation was issued to him. Titus subsequently raised among his friends a substantial amount of money for the purpose of drilling on said leases, and he suggested to the petitioner to put in his share. The petitioner replied that he was using his money at that time in another venture and asked Titus if he could wait awhile, to which Titus agreed.
About August, 1922, Titus talked to one James Irvine, with a view to inducing Irvine to invest come money in the Conservative Oil Co. Irvine went with Titus and the petitioner to look over the said land on which the Conservation oil Co. held leases and was impressed with the possibilities and agreed to invest $40,000.
*256 Shortly thereafter Irvine, who was a large stockholder in North American Oil Consolidated, suggested to Titus that the land be transferred to that company, which was a going concern. This suggestion was discussed by Titus, the petitioner and the other directors of North American Oil Consolidated, and as the result of the discussions and negotiations*1889 it was agreed that all of the capital stock of the Conservative Oil Co., together with $140,000 in cash, stock of the Conservative Oil Co., together with $140,000 in cash, should be transferred to North American Oil Consolidated and that in exchange the latter corporation should issue 562,500 shares of its capital stock to the stockholders of the former corporation. The transaction was carried out in accordance with said agreement. to North American Oil Consolidated, was under the necessity of selling a part of the shares of stock of North American Oil Consolidated that he had received. This stock at that time had a market value of approximately $1 per share. However, the market was not firm and Titus felt that if he were to sell a large amount of said stock on the market, he would break the market materially. He therefore disposed of various amounts of said stock among his friends and relatives, and in this manner raised all but $15,250 of the $140,000 needed. Titus then went to the petitioner and informed him that it was imperative that he (the petitioner) put up the money that he had promised to contribute to the enterprise. The petitioner, upon inquiry as to how much money*1890 Titus needed, was informed that $15,250 would be sufficient and the petitioner paid that amount to Titus, which enabled Titus to finish the transaction with North American Oil Consolidated. Titus, up to that time, had invested $31,000 in the enterprise relating to said leases, and still retained about 280,000 shares of the capital stock of North American Oil Consolidated that he had received as above set forth. He took the position that the joint investment of himself and petitioner in the venture was $46,250, for which they had approximately 280,000 shares of North American Oil Consolidated stock. He therefore turned over to the petitioner 95,333 shares of said stock and retained the remainder thereof.
The respondent, upon audit of the petitioner's return for 1922, determined that the petitioner realized a profit of $91,875 from the transaction above set forth, added that amount to the petitioner's income as reported, and determined a deficiency in tax in the amount of $47,660.52.
OPINION.
MARQUETTE: The evidence in this case shows in full detail the nature and effect of the transaction on which the respondent bases the income he has ascribed and taxed to the petitioner. *1891 However, it *257 does not support the respondent's conclusion. The testimony of both the petitioner and Titus shows that they engaged in a joint venture to acquire and exploit certain oil leases, the title to which would be taken in the name of Titus. The petitioner was, however, to have a one-fifth interest, for which he was to pay Titus when called upon so to do, but his interest was considered and recognized by both Titus and himself as existing from the beginning of the venture, and it was not changed by the fact that it was not until later that Titus called upon him for payment. The leases were acquired by Titus and were by him transferred to the Conservative Oil Co. for shares of its capital stock, and that capital stock, together with money, was subsequently conveyed to North American Oil Consolidated in exchange for shares of its capital stock. The conveyances to the two corporations were obviously nontaxable transactions under section 202(c)(2) and (3) of the Revenue Act of 1921, and the net result of the whole venture was that Titus and the petitioner invested therein $46,250 for which they received, and divided between themselves, in proportion to their respective*1892 contributions to the investment, about 280,000 shares of North American Consolidated Oil stock. The petitioner contributed $15,250 and received 95,333 shares of stock. He realized no taxable income.
Decision will be entered under Rule 50.