*1130 The discharge by a solvent taxpayer, owning other property, of a mortgage debt, for which he was personally liable, by the payment, several years later, of less than the amount borrowed, the value of the property having diminished to the amount paid in settlement, held to result in taxable gain.
*890 The Commissioner determined a deficiency of $713.39 in petitioner's income tax for 1936. He made several adjustments, of which the petitioner assails only the treatment as income of the $7,000 difference between the $15,000 face amount of a mortgage owed by petitioner and the $8,000 paid by him in satisfaction of it. The facts have almost all been stipulated.
FINDINGS OF FACT.
The petitioner is a resident of Chicago, Illinois. In 1928 he acquired a piece of real estate in Chicago "for the agreed price of $29,000" of which he "paid $10,000 in cash and assumed and agreed to pay a first mortgage of $15,000 and a second mortgage of $4,000." He paid $1,000 on the second mortgage before April 2, 1929, when both mortgages were due.
On*1131 that date petitioner "procured a refinancing of said mortgages totaling the sum of $18,000" from a bank. "With the proceeds of this loan the balance due * * * was discharged. The petitioner realized no cash for himself therefrom." The mortgage of April 2, 1929, was payable $1,000 in one year, $2,000 in two years, and $15,000 on April 2, 1934. The $3,000 was paid. Meanwhile someone other than the bank became the mortgagee.
*891 When the mortgage became due the mortgagee demanded payment. Petitioner carried on negotiations for settlement in which he offered to transfer the property in satisfaction of the debt; but the mortgagee refused. On April 5, 1936, petitioner paid and the mortgagee accepted $8,000 in discharge of the debt. The value of the property on that date 1 was $8,000.
Petitioner was solvent both before and after the settlement and owns other property. He still owns the property in question and there is no mortgage on it.
OPINION.
STERNHAGEN: The Commissioner determined that by settling the $15,000 mortgage debt in 1936 for $8,000 the petitioner*1132 realized income of $7,000, citing (which became final, see .)
The determination must be sustained. That gain is realized by discharging a debt for less than its principal amount may be taken as a general rule, . There are exceptions depending on the circumstances, e.g., that the debtor has become insolvent, , that the original debt was voluntarily incurred for no consideration except the self-imposed obligation to distribute surplus by way of dividend, , or that the bonds were not retired and the debtor's entire assets were so diminished in value that to acquire some of the bonds did not result in freeing assets, . Cf. *1133 .
It can not be said from the evidence that petitioner suffered a loss or that he did not in fact have a gain. It is true that the property is worth less than it cost; but that may prove to be but a temporary diminution in value and not a definitive realization of loss in the investment. Until the property is disposed of there is no knowing whether "the transaction as a whole is a loss", as in . See ;The petitioner was personally liable; was not insolvent; had other property (how much does not appear); and now owns this property free from the mortgage. Thus the transaction of settlement "made available $7,000 assets previously offset by the obligation of the debt now extinct", as said in the Kirby Lumber case.
The mortgage was not a purchase money mortgage. There was a new borrow, the proceeds of which were used to discharge an earlier *892 obligation. It was secured by a new mortgage on the property, which had*1134 cost $29,000, of which $11,000 had been paid and $18,000 was now being paid with the entire amount now being borrowed. The cost had therefore become fixed. It immediately became and continued to be the basis for depreciation and cognate deductions. After such cost has been carried for a number of years it may not be readjusted either because of the fall in the value of the property or because of the settlement of the obligation of the loan. See ; .
Decision will be entered under Rule 50.
Footnotes
1. The question asked for the value on September 5, 1936, but that may be regarded as a mistake. ↩