*1300 1. Interest on an award made as just compensation for property taken through an exercise of the power of condemnation by the city of New York is not interest upon the obligation of a political subdivision of a state within the meaning of section 22(b)(4) of the Revenue Act of 1928.
2. The portion of the award which represents gain to the taxpayer upon the disposition of his property is a part of his gross income for Federal tax purposes.
3. A taxpayer who fails to prove what part of the award was invested in other property, the date of acquisition, and the cost of that property has not shown that he is entitled to the relief afforded by section 112(f) of the Revenue Act of 1928.
*803 The Commissioner determined a deficiency of $938.75 in the petitioner's income tax for the calendar year 1929. The errors assigned by the petitioner which are being urged are: (1) That interest received on a condemnation award is interest on an obligation of a state or political subdivision thereof and is not taxable under section 22 of the Revenue Act of 1928; (2) *1301 the condemnation award merely granted just compensation for the property taken and the Commissioner erred in determining that the petitioner realized a capital net gain of $173,456.50 on the condemnation; (3) the condemnation of the petitioner's property and the subsequent reinvestment of the proceeds in revenue producing realty was an involuntary conversion within the meaning of section 112(f) of the Revenue Act of 1928, and therefore not taxable.
FINDINGS OF FACT.
The petitioner is an individual residing at Jamaica, Long Island, New York. For many years he has been engaged in the real estate business.
He and his wife owned certain real property in Jamaica which was condemned by the city of New York for the purpose of opening a new street. As just compensation for the taking of this property the owners were awarded $239,198.90 in December, 1929. This sum bore interest. In December, 1929, the city of New York paid the owners the amount of the award and also interest in the amount of $18,617.65.
The petitioner and his wife purchased the property in question in 1918. Thereafter they improved it somewhat. Two three-story buildings, three stores and fifteen garages were*1302 on the property when *804 it was taken by the city. The three-story buildings were occupied by a children's court, lawyers, and real estate companies. It was in the best business section of Jamaica. The petitioner and his wife were holding the property as an investment and for the income which it produced and did not desire to sell it. Prior to the time when it was taken by the city, it produced income of from $10,000 to $12,000 per year. The petitioner's other income was not large.
Soon after the property was taken by the city the petitioner began to acquire and improve about twenty vacant lots situated about one-half mile from the condemned property. He did this for the purpose of obtaining rent from the properties and because he thought the properties would be a good investment. He did not improve all of the lots at once, but constructed one unit at a time. In order to begin this plan he and his wife first borrowed money from banks, giving their notes and an order on the expected award as collateral. After each building had been completed they would obtain a mortgage on it and begin the construction of another building. Some of the houses were built before and*1303 some were built after the money was received from the condemnation proceedings. The last one was built in the summer of 1931. They constructed altogether four four-family houses, each on a lot 100 feet by 100 feet, and finally built an apartment house. The total cost of this property was several hundred thousand dollars. At the time of the hearing the petitioner still owned all of the properties thus acquired, except two which he had lost through foreclosure in 1932.
When the property was condemned it was encumbered by liens of about $60,000, secured by notes and a mortgage. A part of the award was used to pay off this indebtedness in 1929 and a part was used to pay the amount which had been borrowed from the banks in connection with the new properties above mentioned. With some of the money obtained from the award the petitioner paid certain bills which he owed to tradespeople and also paid income taxes to the Federal Government. All of the remainder of the award was invested in property as above set forth.
The petitioner and his wife filed a joint income tax return for the calendar year 1929, showing, in addition to a small amount of income, a capital net gain of $172,878.90*1304 resulting from the receipt of the award for the condemned property. The Commissioner increased the capital net gain by a small amount representing an understatement of depreciation and added to the ordinary income shown on the return, $18,617.65 representing interest received on the award.
OPINION.
MURDOCK: Interest on an award made as just compensation for property taken through an exercise of the power of requisition or condemnation *805 by the city of New York is not interest upon the obligations of a state, territory, or any political subdivision thereof within the meaning of section 22(b)(4) of the Revenue Act of 1928. ; ; . Cf. ; affd., ; ; affd., ; certiorari denied, . The Commissioner did not err in holding that this amount was income subject to tax.
*1305 The petitioner next contends that the award merely granted just compensation for the property taken and no taxable gain resulted. In his brief the petitioner merely states his contention and cities in support of it and . Thus, the petitioner advances no argument that has not been answered satisfactorily by the Circuit Court of Appeals for the Eighth Circuit in It is true that that case differs from the present case. There the Federal Government had exercised its power of eminent domain to take the property for a temporary use only, the compensation was for this use and was based on earnings, and the same power which exercised its right of eminent domain also imposed taxes. Here the city of New York took the property, not temporarily, but permanently, the compensation was based upon the value of the property, and a different government has determined the tax, based upon the gain derived from the disposition of the property. There is less analogy between the present case and the two cases cited by the petitioner than there was between*1306 those two cases and the case decided by Judge Kenyon, for here the Federal Government is certainly not diminishing any obligation of its own. Cf. . The proceeds of the condemnation, in so far as they constitute gain, are a part of the petitioner's gross income for Federal tax purposes. ; section 112(f) of the Revenue Act of 1928.
The petitioner now claims that the money received from the involuntary conversion of his property was expended in the acquisition of other property similar or related in service or use to the property converted, within the meaning of section 112(f) of the Revenue Act of 1928. This claim was made for the first time at the hearing through an amendment to the petitioner. The excess of the amount of the award over the basis which the property had in the hands of the petitioner, after an adjustment for depreciation, was included by the petitioner in his return as a capital net gain. The respondent made a slight change in this item which the petitioner does not complain of, but the latter now seeks to show that the item never should have been*1307 taxed as income and, therefore, his taxes *806 have been overpaid in a substantial amount. The property was involuntarily converted into money through the exercise of the power of requisition or condemnation by the city of New York and after it was taken the petitioner and his wife acquired an equity in other property which was similar or related in service or use to the property taken from them. But despite these facts the petitioner has failed to show how much of the money received through the award was "forthwith in good faith, under regulations prescribed by the Commissioner with the approval of the Secretary expended in the acquisition of other property similar or related in service or use to the property converted" as required by the section in question.
Clearly, a substantial part was not so expended, since some was used for other purposes. Encumbrances on the property condemned, tradesmen's bills, and income taxes took a substantial portion. Nor have we been told exactly how much was expended in acquiring an interest in the new properties. Furthermore, we can not make even a reasonable approximation of the amount expended in acquiring the interest in the new*1308 property.
The petitioner did not attempt to be exact in the dates and figures which he gave. Each was only an approximate figure. He gave neither the date of acquisition nor the cost of any of the properties. Part of the cost was represented in mortgages, but, how much, he never said. He was the only witness. He testified entirely from memory. The cross examination brought out the fact that he was mistaken about the date when he and his wife had acquired the property later condemned. He testified that the property was condemned in May 1925. The final decree shows that if it was taken later than 1923 it was taken in 1928.
Obviously we can not hold that no gain shall be recognized in 1929. Neither can we reduce the amount of the gain to be recognized in 1929 from the figure determined by the Commissioner to any other definite amount. The scheme of section 112(f) is to delay the recognition of gain or loss until the property substituted is disposed of. The substituted property, under other provisions of the statute, takes the basis of the old for gain or loss and for depreciation purposes. If any part of the gain is not to be recognized in 1929, the proof ought to be*1309 sufficiently accurate to disclose the data necessary to an intelligent administration of these other provisions of the statute, iE., what particular property was acquired, the date acquired, and the cost to the taxpayer paid by funds from the award. The present petitioner has failed to show any of these facts with reasonable certainty. .
Judgment will be entered for the respondent.