1928 BTA LEXIS 2982">*2982 1. Conclusion reached in the case of R. V. Board,14 B.T.A. 374">14 B.T.A. 374, with respect to the profit realized on a certain lease-acquisition transaction followed for the purpose of determining the profit to the petitioner from this same transaction.
2. Conclusion reached in the case of R. V. Board,14 B.T.A. 374">14 B.T.A. 374, with respect to the profit realized from a certain pipe-line venture, to which Board and the petitioner were parties, followed for the purpose of determining petitioner's taxable income from the same transaction.
3. Petitioner received certain profit in 1919 in liquidation of a corporation. In 1925 suit was brought against petitioner as transferee of the property on account of taxes alleged to be due from the corporation for 1919 and prior years. In 1926, the suit was decided in petitioner's favor. Held, that the profit was properly returned as taxable income for 1919.
4. The fact that a single man maintains a home in which his sister lives and keeps house for him does not make the man the head of a family and thus entitled to the exemption of $2,000 provided by section 216(c) of the Revenue Act of 1918.
14 B.T.A. 407">*407 This proceeding involves deficiencies in income tax as follows: 1919, $11,066.94; 1920, $10,561.54, and 1921, $113.08.
FINDINGS OF FACT.
The petitioner is an individual and a resident of Louisville, Ky. During 1918, 1919, and 1920, he was a stockholder in the Old Dominion Oil Co. (hereinafter sometimes referred to as the Dominion Company), a Kentucky corporation, organized December 31, 1917.
Prior to August 5, 1918, the directors of the Dominion Company had been conducting negotiations for the purchase of certain oil 14 B.T.A. 407">*408 leases owned by the Southwestern Petroleum Co. and the Cliff Petroleum Co., and by August 2, 1918, the negotiations had progressed to the extent that a stockholders' meeting was called by the Dominion Company for August 5, 1918, for the purpose of explaining the proposed transaction to the stockholders. At this meeting the directors described the nature of the properties to be purchased and the benefits which would flow to the stockholders as the result of their acquisition. In addition, the directors stated the consideration which was1928 BTA LEXIS 2982">*2984 to be paid for the properties and outlined plans by which the project might be financed. At the conclusion of the explanation, a resolution was adopted confirming the actions of the directors in these negotiations and authorizing them to complete the negotiations and sign the contract. At the same meeting a further resolution, looking to the financing of the transaction was adopted, which read in part as follows:
RESOLVED: That for the benefit of the Old Dominion Oil Company two separate corporations be organized with a capital stock of $100,000.00 each under such names and titles as may hereafter be selected by the Board of Directors, the Executive Committee or officers of said corporation, and that the stockholders of the Old Dominion Oil Company be given the privilege of subscribing to the capital stock of said corporations not in excess of 20% of their present holdings in the Old Dominion Oil Company to each of the said foregoing corporations. That said corporations be conducted until such time as in the wisdom and prudence of the Executive Committee or officers of said Old Dominion Oil Company sufficient payments can be made upon the foregoing contracts with the Southwestern1928 BTA LEXIS 2982">*2985 Petroleum Company and others that the property of said corporations can be deeded to, merged with, or consolidated with the Old Dominion Oil Company and said transfer to the Old Dominion Oil Company of said properties shall be for the consideration of the return to each of the stockholders investing in either or both of the foregoing corporations to be organized, the sum or sums of money invested therein, or its equivalent and a like amount of stock in the Old Dominion Oil Company. And the directors and officers of said corporation, Old Dominion Oil Company, are now and hereby authorized to take such steps, sign such amended articles, affix their signatures to such necessary contracts, papers, leases and assignment of leases as may be required to contract with either or both of the foregoing corporations to be organized, and to transfer all of said property to the Old Dominion Oil Company hereafter when in the judgment of said directors and officers the conditions of said transfer may be made to the benefit of said Old Dominion Oil Company, the purpose being to organize and carry on the foregoing two corporations solely for the use and benefit of the Old Dominion Oil Company, and1928 BTA LEXIS 2982">*2986 not otherwise, and to effectually carry out said purposes, said officers and directors are now and hereby ordered and directed to do any and all necessary and proper things to be done and to sign any and all papers, contracts, leases, transfers of leases and otherwise.
The "two separate corporations" referred to in the foregoing resolution were not organized, but the contract in question for the acquisition of the oil leases was entered into on August 12, 1918, and 14 B.T.A. 407">*409 approved at a meeting of the board of directors of the Dominion Company on August 16, 1918. This contract set out that the consideration to be paid for the leases was $400,000, of which $200,000 was to be paid in cash and $200,000 in the following manner:
One-half of the working interest in the oil produced on said leases and each of them (and by the use of the expression "working interest" is meant the gross production, less the royalty interest or oil reserved by the landowner or other person heretofore interested in the oil and gas or oil and gas rights in said premises) shall be the property of the Petroleum Companies as soon as and when produced, until the sum received from the sale of said one-half1928 BTA LEXIS 2982">*2987 of said working interest shall amount to the sum of Two Hundred Thousand Dollars, ($200,000.00).
At a meeting of the stockholders of the Dominion Company, held on August 17, 1918, the following resolutions were adopted:
RESOLVED: That the contract made by the officers and directors of this Company with the Southwestern Petroleum Company and the Cliff Petroleum Company, as shown by the minutes of the meeting of directors of this company, held August 16, 1918, be and the same is now and hereby in all things, confirmed and ratified, and that the officers and directors be further advised to pay the sum of Thirty Thousand ($30,000.00) to M. C. Clay and W. J. Flesher, and be authorized and directed to accept Six Thousand ($6,000.00) Dollars rebate on some of the cash payments mentioned in said contract by reason of the royalties being somewhat higher than the original negotiations on the M. J. Brandenburg lease of 19.25 acres.
Said resolution so offered was unanimously carried, there being no stockholder voting in the negative, and it was so ordered.
Whereupon the following resolution was offered by Charles W. Schindler, and seconded by Michael Zier, both stockholders of record, 1928 BTA LEXIS 2982">*2988 and personally in attendance at said stockholders' meeting:
RESOLVED: That the officers and directors be and they are now and hereby authorized and directed to amend the Articles of Incorporation of the Old Dominion Oil Company, increasing the authorized capital stock from Five Hundred Thousand ($500,000.00) Dollars to Seven Hundred and Fifty ($750,000.00) Thousand Dollars, and that the president and a majority of the Board of Directors be authorized and directed to execute such amended Articles of Incorporation, and record the same and file the same with the Secretary of State of the Commonwealth of Kentucky, in order to effect such increase, and that the officers and directors of said corporation be authorized and directed to do any and all other necessary and proper things to be done and sign all other necessary and proper papers to be signed, in order to effectually carry out this resolution and amend said Articles of Incorporation, increasing the capital stock from Five Hundred Thousand ($500,000.00) Dollars to Seven Hundred and Fifty Thousand ($750,000.00) Dollars.
After a full discussion the motion was unanimously carried and the following amended articles of incorporation1928 BTA LEXIS 2982">*2989 were presented. [Form of such amended articles was omitted.]
After which your committee reported, which report was unanimously adopted, that the Old Dominion Oil Company's contract with the Southwestern Petroleum Company and the Cliff Petroleum Company be sold and assigned to and assumed by each of the stockholders of the Old Dominion Oil Company 14 B.T.A. 407">*410 agreeing thereto equally and ratably, in proportion to their present holdings of stock in the Old Dominion Oil Company; and that each agreeing stockholder furnish the necessary sums of money required of him to pay the gross sum of $200,000.00 in cash to the Southwestern Petroleum Company and the Cliff Petroleum Company, as provided in and by the contract of August 12th, 1918.
There being $500,000.00 of outstanding capital stock of the Old Dominion Oil Company, this will require a payment by each of said stockholders of forty per cent of their present holding of stock in the Old Cominion Oil Company.
That when each of said stockholders have paid said sums of money equivalent to forty per cent of their present stockholdings in the Old Dominion Oil Company, aggregating a total of $200,000.00, that they and each of them1928 BTA LEXIS 2982">*2990 making such payments be the owners of all of the right, title and interest in and to the aforesaid contract of August 12th, 1918, in proportion to their said respective payments; and that the officers of the Old Dominion Oil Company be required to and keep a record of all said payments so made by each of its said several stockholders, with a contract running to each of them individually, which likewise shall run to all of them jointly and severally, to pay to them out of the oil-runs from the property purchased in and by the said contract of August 12th, 1918, the full sum of $200,000.00 in cash, without interest, along with and at the times that the $200,000.00 in oil mentioned in said contract of August 12th, 1918, is paid to the Southwestern Petroleum Company and the Cliff Petroleum Company.
That further, when each of said payments have been fully made out of the oil-runs from said properties, namely, $200,000.00 to the Southwestern Petroleum Company and the Cliff Petroleum Company, and $200,000.00 to the stockholders furnishing the aforesaid $200,000.00 in cash, as shown by the books of the company, then that there be immediately purchased from said parties said contract by1928 BTA LEXIS 2982">*2991 issuing to each party this company's stock at par value equal to the amount of money paid by him. That is to say, when the properties purchased by and as the result of the oil-runs under said contract of August 12th, 1918, has paid for itself in full, then and not until then shall stock be issued to each of the parties furnishing aforesaid funds. The consideration being that the furnishing of said $200,000.00 in cash without interest, for the period necessary and proper that may be required to secure all of said money from the production of oil-runs on the property so purchased enables said Old Dominion Oil Company to own the property purchased in and by the contract of the 12th day of August, 1918, without paying for it out of its own resources, and without being at any expenditure whatever on account of the purchase price of the property, or any other sum than the amounts required to drill in and operate said property. It is understood that the sums mentioned herein to be paid are to be produced from said properties out of the net working interest after the payment of all royalties, and that one-half of said net working interest is to go to the Southwestern Petroleum Company and1928 BTA LEXIS 2982">*2992 the Cliff Petroleum Company, and the other half of said net working interest is to be credited and ultimately paid to the parties furnishing the said $200,000.00, as shown by the books of the corporation, and as mentioned herein; and that the stock issue following thereafter is to be paid to the same parties furnishing said funds in the exact proportion to the amount of money so furnished by them.
And further, that when each of said parties so furnishing said $200,000.00 have been fully paid, as mentioned herein, without interest, and stock issued to them, as mentioned herein, and the Southwestern Petroleum Company and the Cliff Petroleum Company have likewise been paid the $200,000.00 mentioned 14 B.T.A. 407">*411 in the contract of August 12th, 1918, then the property is to become the sole and absolute property of the Old Dominion Oil Company, and all the rights, interest and privileges mentioned in the contract of August 12th, 1918, shall automatically revert to and become the absolute property of the said Old Dominion Oil Company.
The plan of financing referred to in the minutes of August 15, 1918, was not carried out, but subscription blanks were prepared, which showed the names1928 BTA LEXIS 2982">*2993 of the proposed companies and read as follows:
We, the undersigned, hereby subscribe to shares of the capital stock of the Cave Fork Oil Company, a corporation to be organized under the laws of the State of Kentucky, with an authorized capital of $100,000.00, for the use and benefit of the stockholders of the Old Dominion Oil Company, as more fully set forth in the statement from the meetings of the Board of Directors and stockholders. And we hereby subscribe a like amount to the capital stock of the Bald Rock Oil Company, a corporation to be organized under the laws of the State of Kentucky with an authorized capital of $100,000.00 for the same purpose.
We now and hereby attach our check for the sum of $ , and agree to pay on the 1st day of September, 1918, $ , and on the 1st day of October, 1918, $ , with the understanding that when the net amount of $100,000.00 worth of oil has been run by each of said corporations, the sum so subscribed by us is to be repaid to us in cash by the Old Dominion Oil Company and a like amount of the stock of the Old Dominion Oil Company set aside and issued to us at said time without the payment of any other or further sum of money than the payments1928 BTA LEXIS 2982">*2994 now and hereby made by us; it being understood and agreed that this subscription to these separate corporations is made for the profit, use and benefit of each of us as stockholders of the Old Dominion Oil Company, and that this subscription is made in several duplicates, each one of which may be treated as an original, and an exact copy of which is retained by me.
These subscription blanks were signed by substantially all of the stockholders, but in those instances where stockholders did not assume these obligations, they were assumed by other stockholders. The subscriptions were paid and the cash was used by the Dominion Company to pay the amount required in cash on the purchase price of the leases here in question.
The leases were operated by the Dominion Company. The oil was transported through the pipe line of the Cumberland Pipe Line Co., which company delivered one-half to the Southwestern Petroleum Co. and Cliff Petroleum Co. until the payments called for in oil were satisfied. The Dominion Company received the amounts on account of the other half of oil produced. The cash so received by the Dominion Company from this oil production was not accumulated in a separate1928 BTA LEXIS 2982">*2995 fund, but was included in the general receipts of the Dominion Company. No fund was accumulated and set aside for the specific purpose of paying to the stockholders $200,000 on account of this amount of cash so paid by them.
14 B.T.A. 407">*412 At the time the contract for the acquisition of the leases in question was entered into, the petitioner held 230 shares of stock in the Dominion Company of a par value of $23,000, and paid on account thereof $9,200 in cash (40 per cent of $23,000). As a result, the petitioner became entitled to receive 92 shares of Dominion Company stock under the agreement with respect to the purchase of the leases and otherwise participate in the distribution which was to be made on the fulfillment of this agreement. In addition, petitioner acquired from various individuals 59 3/5 rights to a participation in the lease-acquisition agreement, thus giving to petitioner 151 3/5 rights at July 31, 1919. With the exception of one right which was acquired in March, 1919, the remaining 58 3/5 rights were acquired in May and July, 1919. Rights of this character were recorded on the books of the Dominion Company and dealt in separate from this corporation's stock.
1928 BTA LEXIS 2982">*2996 The par value of the capital stock of the Dominion Company was $100 a share at the time of the acquisition of the leases and so remained until July 31, 1919, when the par value was changed to $1 a share, 100 shares being issued for each share previously held. At this time, July 31, 1919, a consolidation was effected between the Dominion Company, the Belle Point Oil Co. and the Sinking Springs Oil Co., the stock of the Dominion Company being increased at this time to 5,000,000 shares of a par value of $5,000,000.
On July 31, 1919, there were issued to the petitioner 9,200 shares of stock of the Dominion Company on account of the 92 rights (changed to a basis of 9,200 in the reduction of the par value of the stock) to stock under the lease-acquisition agreement, which rights had been acquired through his original payment on the stock held by him, and there were also issued to him 9,200 shares in lieu of cash or equivalent which was referred to in the resolution of the stockholders of August 17, 1918, the stockholders electing to take stock instead of cash. In addition, there were issued to petitioner 5,960 shares on account of the 59 3/5 rights which had been acquired by petitioner1928 BTA LEXIS 2982">*2997 and a like number of shares in lieu of cash. Thus, for 151 3/5 rights held, the petitioner received 30,320 shares of the Dominion Company stock. The petitioner reported no taxable income on account of this transaction on the ground that the funds furnished, or payments made, were contributions of capital. The Commissioner contends that a taxable profit resulted to petitioner of the difference between the amount invested and the market value of the stock received.
During 1918 the Dominion Company was considering the construction of a pipe line to some of its oil fields and on October 22, 1918, entered into the following agreement with George H. Schroer:
14 B.T.A. 407">*413 THIS AGREEMENT made this the 22nd day of October, A.D. 1918, by and between the Old Dominion Oil Company, a corporation duly organized under the laws of the State of Kentucky, first party, and George H. Schroer, of Louisville, County of Jefferson, State of Kentucky, second party. Witnesseth:
That whereas, the first party has a large production of crude petroleum on Big Sinking Creek, and its tributaries in the Lee CountyKentucky, and elsewhere, and has heretofore purchased and does now own a half interest in the1928 BTA LEXIS 2982">*2998 following property with the second party.
Whereas, the second party has leases for the right of way and some equipment for the purpose of building a pipe line from Bell Point, on the L. & N. Railroad, and up and along the meanderings of Contrary Creek to the Big Sinking Oil District, and does not at this time have the money with which to carry on the construction and pay for the material.
Now, therefore, it is now and hereby agreed and understood by and between each of the parties hereunto that for and in consideration of One Hundred ($100.00) Dollars, cash, receipt of which is hereby acknowledged, and other good and valuable consideration, the second party does now and hereby sell, transfer and deliver to the first party all of the leases for the said right of way, and all the equipment, as per itemized statement hereunto attached and marked "Exhibit Number One," which he has purchased and paid for, and any and all other interest that he, in any manner, may have in and to said pipe line, and any and all other property, rights, powers and privileges belonging to him in any manner whatever for the purpose of constructing said pipe line.
First party as a further consideration1928 BTA LEXIS 2982">*2999 in the premises herein hereby agrees to build said pipe line in co-operation with the second party from Bell Point to the Big Sinking District, and especially to what is known as the Nannie Bryant, Liberty Bryant, and N. J. Brandenburg leases, and to keep an accurate, careful and correct account of all of the necessary and proper expenditures made in building and constructing said pipe line.
The first party does now and hereby give the second party an option to purchase in his own name and for his own use and benefit a one-half interest in and to said pipe line, pumps, storage tanks, loading stations and sidetracks, and all other matters connected therewith upon the repayment to the first party of the net one-half of the exact sum so expended by it, plus six per cent (6%) interest for the period the money is in use until the first day of February, 1919. Said option is not transferable, or assignable, but is to be held and owned by said second party, his heirs, executors, administrators and assigns, as his own property, and is to be so continuously held when purchased by said second party. It is clearly the intention of the parties that the one-half interest of the second party1928 BTA LEXIS 2982">*3000 is not to be sold, transferred and conveyed to any other, or competing oil company, or any other or competing pipe line. But if it is at any time to be sold, it is to be sold to the first party, upon the exact basis the first party is selling to the second party, viz: actual cost plus six per cent (6%) interest, less any earnings that may have been received by the second party.
That in the event said second party exercises his option, as stated herein, and becomes the owner of a one-half interest in and to said pipe line, the business of said pipe line shall be kept separate and apart in the accounting departments of the Old Dominion Oil Company, so that the net earnings may at all times be properly shown and the first party shall at all times consult with the second party in regard to the prudent business management of said pipe line, and shall jointly make such reasonable, prudent arrangements to purchase, buy and sell or otherwise handle the oil belonging to the Old Dominion Oil Company, or that 14 B.T.A. 407">*414 may hereafter be purchased by it, and that they can reasonably make a profit upon by purchasing, selling, handling or storing, from other leases, in order to use as much1928 BTA LEXIS 2982">*3001 of the capacity of said pipe line as can reasonably and profitably be used. That the manner in which said business may be carried on will depend largely upon competition in said field and the ability of the parties hereunto to furnish the necessary capital, equipment and storage to carry on said business profitably. In any event, if said option be exercised both of the parties herein shall mutually, equally, and ratably, furnish said necessary capital, as may be so required, and shall mutually plan and carry on the business done on and through said pipe lines.
It is distinctly understood that the oil run through said pipe line belonging to the Old Dominion Oil Company shall be charged to that department of accounting at the same rate that other oil of like quality and kind, under similar conditions, is charged to said pipe line, the intention being to make the operation and conduct of said pipe line as a separate department of the Old Dominion Oil Company profitable, and carrying it on as a separate business department for the profit of the parties hereunto. But nothing herein contained shall require or compel the Old Dominion Oil Company to run its oil in and through said pipe1928 BTA LEXIS 2982">*3002 lines if it can do better by delivering its oil to other pipe lines for shipment of other markets.
Financial difficulties arose in securing funds with which to build the pipe line and in order to overcome these difficulties, four directors and stockholders of the Dominion Company, namely, Charles C. Stoll, R. V. Board, W. E. Massey (petitioner), and James R. Duffin, joined with the Dominion Company and Schroer in financing the undertaking.
On January 25, 1919, after the construction of the pipe line had been completed, an agreement was entered into which reads in part as follows:
THIS AGREEMENT, made by and between the Old Dominion Oil Company, a corporation duly organized under the laws of the State of Kentucky, first party, and George Schroer, Charles C. Stoll, Robert V. Board, William E. Massey, and James R. Duffin, second parties, WITNESSETH:
THAT, WHEREAS, the contracts and agreements heretofore entered into by and between the Old Dominion Oil Company and George H. Schroer for the building of a pipe line from the Big Sinking district to Belle Point, together with its pumping station, storage tanks, loading racks, and sidetrack facilities, have now been completed and1928 BTA LEXIS 2982">*3003 fulfilled, and the entire property costing the sum of $ , as per itemized statement hereunto attached and made a part hereof; and,
WHEREAS, said second parties own a one-half interest therein by the payment of one-half of the foregoing sum to the first party, which payment is now and hereby made in cash, receipt of which is acknowledged hereby, by the first party; and
WHEREAS, it may require some additional sums to make connections, and equip and improve the said pipe line;
It is now and hereby agreed and understood, as follows:
1. That the said foregoing pipe line shall be operated by and in the name of the Old Dominion Oil Company as a separate department of its business, and it shall receive as its own from said department, to be intermingled with all of 14 B.T.A. 407">*415 its other funds and profits, the one-half net earnings of said pipe line. All of the oil purchased from producers in the Big Sinking field, or elsewhere, shall be purchased in the name of and with the funds and credit of the Old Dominion Oil Company, but a separate account shall be kept of the same in connection with the said pipe line department, in the following manner, to-wit: The first and second parties1928 BTA LEXIS 2982">*3004 shall mutually agree upon a general manager for the entire pipe line properties, under whom the entire operations of the pipe line shall be conducted, from the gauging of the oil in the field at the production tanks to the delivery of the oil in the tank cars at Belle Point; and each of the parties hereunto shall mutually agree, under the advice and counsel of said general manager, in regard to the employment of all of the necessary additional labor to properly conduct and carry on said pipe line, and all of said expense shall be paid out of the current earnings of said pipe line department. The oil shall be sold F.O.B. cars Belle Point, Kentucky, sight-draft, bill-of-lading attached, in the name of and under contracts made by and between the purchasers and the Old Dominion Oil Company.
A separate bank account shall be opened in some bank in the City of Louisville under the name "Old Dominion Oil Company, Pipe Line Department," and all of said sight-drafts and bills-of-lading attached, shall be deposited in and credited to said account. All of the purchases of oil made by the Old Dominion Oil Company shall be paid out of and charged to said account, and a separate set of books1928 BTA LEXIS 2982">*3005 shall be kept at Belle Point, Kentucky, showing all of said purchases, and all of said sales. All of the expenditures, of every kind and character in connection with said pipe line department shall likewise be paid out of said account, so that the net profit at any given time shall be represented by the net balance in bank to said account in the name of said pipe line department. Except as its is a half owner therein, the Old Dominion Oil Company shall not be liable for any losses that may be sustained by reason of the operation and conduct of said pipe line department, and shall receive no other profit, or profits, in any manner whatever, except by reason of its said one-half interest therein. The gross profit to said pipe line department shall be primarily represented by the difference in price at which it buys the oil at the production tanks in the field, and the price at which it sells the oil F.O.B. tank cars at Belle Point, Kentucky. From this gross profit shall be paid all of the expenses, and all of the permanent improvements, and all other expenses, of every kind and character, made for and on account of this pipe line department.
* * *
4. At the end of each and1928 BTA LEXIS 2982">*3006 every four months from the date hereof, a full and complete audit and settlement of said pipe line department shall be made, and a full distribution made of the net profits arising therefrom, in accordance with the terms and conditions of this contract. It being understood, however, that said profits shall be divided in the following manner, to-wit: Old Dominion Oil Company 6/12; George H. Schroer, 2/12; Charles C. Stoll, Robert V. Board, William E. Massey, and James R. Duffin, 1/12 each.
On Auguest 5, 1920, the Dominion Company sold all of its assets to the Superior Oil Co., and thereafter dissolved. The stockholders in their meeting looking to the dissolution of the company, appointed R. V. Board, James R. Duffin and the petitioner as a committee 14 B.T.A. 407">*416 to liquidate the Dominion Company, the resolution appointing them reading as follows:
RESOLVED that the contract just read between the Old Dominion Oil Company and the Superior Oil Corporation be and the same is now and hereby accepted, ratified and confirmed, together with the agreement referred to therein called the pooling agreement with the Atlantic Refining Company, and that the officers and directors of the Old Dominion1928 BTA LEXIS 2982">*3007 Oil Company be, and they are now and hereby authorized and directed to affix the signature of the corporation thereunto and to sign all such deeds, leases, conveyances, bills of sale, contracts, assignments, or other papers necessary and proper to be signed to effect said contract and carry out the terms and conditions thereof; and to pass all such motions, resolutions and generally take such action as may be necessary and proper in order to effect said contract and carry out its terms and conditions, we, and each of us now and hereby appoint James R. Duffin, Robert V. Board and William E. Massey, for each of us individually, as our true and lawful attorneys in fact, and do now and hereby authorize them or either of them for us and in our name and stead to sell, assign, transfer and make over all or any part of our individual stock in said Old Dominion Oil Company and to make distribution of the funds or fund or proceeds received therefrom to the just and lawful creditors of said corporations and the duly recorded stockholders thereof, and to substitute one or more persons with like power, hereby retifying and confirming all that the Attorney or his substitute or substitutes shall1928 BTA LEXIS 2982">*3008 lawfully do by virtue hereof. And further when all of said matters and things have been duly and properly done and performed to take all such steps as are necessary and proper to wind up the affairs of said corporation, Old Dominion Oil Company, as provided by the laws of the State of Kentucky.
The foregoing committee or trustees qualified and proceeded to distribute the funds received from the sale of the Dominion Company properties. In making the distribution in 1920, each of the trustees received $18,130.66 as his share of certain proceeds arising out of the sale of the pipe line, these assets being included in the sale of the Superior Oil Co. Certain stockholders objected to this distribution to the trustees, and suits were brought to settle the controversy, which suits had not been finally settled at the time of the hearing in this proceeding.
Prior to 1917, but subsequent to March 1, 1913, petitioner acquired 162 shares of stock in the Dixie Motor Car Co., a Kentucky corporation, for which he paid $16,200. In 1919, this corporation liquidated and paid to petitioner in liquidation, on account of the stock held by him, $23,334.64. The difference between the amount received1928 BTA LEXIS 2982">*3009 and the amount invested, $7,134.64, the petitioner reported as taxable income in his return for 1919. In 1925 suit was brought by the Government against the individuals who were stockholders of the Dixie Motor Car Co. at the time of its dissolution as transferees of the property of this corporation, in which the Government sought to recover income and profits taxes alleged to be due and unpaid by the corporation for 1919 and prior years. Seven stockholders, of whom the petitioner 14 B.T.A. 407">*417 was one, were the defendants named in the suit and the amount sought to be recovered was approximately $52,000. On August 3, 1926, the petitioner and the other stockholders named were completely victorious in their defense of the suit and the petition of the Government was dismissed.
During 1919, 1920, and 1921, petitioner was a single man and maintained a home. During 1919 and a part of 1920 his mother lived with him and during 1919, 1920, and 1921 his sister also lived with him and supervised the running of the household. The petitioner paid the expenses of the home and also his sister's expenses. The sister was 42 or 43 years old.
OPINION.
1928 BTA LEXIS 2982">*3010 LITTLETON: The first issue raised in this proceeding is whether taxable profit was realized by petitioner, a stockholder of the Old Dominion Oil Co., and, if so, how much, in the transactions in which oil leases were acquired from the Cliff Petroleum Co. and the Southwestern Petroleum Co. under an arrangement in which funds were furnished by stockholders of the Dominion Company for the purchase of the leases and later stock was issued by the Dominion Company to these stockholders on account of the funds so furnished. This same transaction was before the Board in . On the evidence there presented, we held that the transaction amounted to an investment on the part of the stockholders when the funds were furnished or invested for the acquisition of the leases and that taxable profit arose at the time the stock was issued to the stockholders, the amount of the taxable profit being the difference between the amount invested and the market value of the stock received.
The additional contentions raised and evidence presented which were not before us in the Bulleit case were considered by us in the case of R. V. Board, another party to1928 BTA LEXIS 2982">*3011 the same transaction, which was decided today. On the basis thereof, we affirm our former conclusion that this was a transaction which gave rise to profit and that the fair market value of the stock received was $1.75 a share. In the Board case we had not only the original contribution but also the cost of the additional rights, and we were thus able to determine the net profit on the venture as the difference between the total amount invested by Board and the amount realized in stock (at its market value) on account of all rights held. In this proceeding we have the original contribution or payment, but do not have the cost of the rights subsequently acquired. However, since the additional rights were acquired within a short time prior to July 31, 1919, and since the value of the rights appear not to have increased to any 14 B.T.A. 407">*418 material extent from the dates of acquisition to July 31, 1919, when the stock was issued, we will disregard the rights and stock issued on account thereof in determining the profit from the venture and compute the profit on the basis of the original contribution of $9,200 and the 18,400 shares of stock issued on account thereof. The taxable1928 BTA LEXIS 2982">*3012 profit is accordingly $23,000 - $33,200 (18,400 shares at $1.75 per share) less $9,200 (the original contribution).
The issue as to the pipe-line distribution was before us to-day in the proceeding of R. V. Board, another party to the same transaction, and is here presented on the same evidence as there considered. From the conclusion reached in that case it follows that the petitioner is taxable on the $18,130.66 which was received as his share of the profit in the pipe-line venture.
The contention made by the petitioner as to the liquidation of the Dixie Motor Car Co. is that he was in error when he reported a taxable profit therefrom in 1919 but that this profit was taxable only in 1926 when the suit against the petitioner, as one of the transferees, was finally dismissed. The amount of the profit (and this is not in dispute) was paid to the petitioner in 1919, and, apparently, no question was raised as to the right of the petitioner to the total amount received until after a revenue agent's examination in 1923. Suit was brought in 1925 and decided in petitioner's favor in 1926. Had it been finally determined in 1926 that the petitioner should not have received all1928 BTA LEXIS 2982">*3013 or any part of the profit which he reported more basis might exist for the petitioner's claim, but where the amount in question was paid to the petitioner in 1919 when no controversy existed as to its correctness and where, after controversy, it is decided that the amount paid in the first instance was not improperty paid, we fail to see any basis for holding that this amount should not be considered as taxable income when paid, in 1919.
With respect to the error assigned by the petitioner on account of dividends received by him from the Old Dominion Oil Co. in 1919 and 1920, the Commissioner, at the final hearing and in his brief, admitted that these dividends were nontaxable. Likewise, the Commissioner confessed error as to the automobile expense of $506.80, which was disallowed by him in 1921. Correction should be made accordingly.
The final issue raised in this proceeding is whether the petitioner is entitled to an exemption as the head of a family for 1919, 1920, and 1921. Section 216(c) of the Revenue Act of 1918 reads in part as follows:
In the case of a single person, a personal exemption of $1,000, or in the case of the head of a family or a married person living1928 BTA LEXIS 2982">*3014 with husband or wife, a personal exemption of $2,000.
14 B.T.A. 407">*419 The basis of the petitioner's claim is that during 1919, 1920, and 1921 his sister lived with him and kept house for him. It should be observed that this is not a claim that the petitioner should be allowed a credit or exemption on account of his sister, or even the mother, as a dependent, but rather that because the petitioner maintained a home in which the sister kept house for him, the petitioner is, therefore, the "head of a family" and entitled to an exemption as such. With this we can not agree. Here we have what seems to amount to little more than an arrangement of convenience, apparently helpful and beneficial to both parties, in which the sister superintends the operation of her brother's household and, in return, is provided with a home in which she lives and also with other support in the way of having her expenses paid. We are of opinion that the Commissioner's action as to this issue was correct. .
Judgment will be entered under Rule 50.