*2497 Held that the exchange of properties here involved does not come within the exceptions set forth in section 213(b)(1) of the Revenue Act of 1924 and that gain resulted therefrom as determined by the respondent.
*1223 The respondent asserts a deficiency in income tax for the year 1924 in the amount of $367.30. For his causes of action the petitioner avers that the respondent has erroneously overstated his income for the taxable year (1) in the inclusion of alleged profit realized from the exchange of one parcel of real estate for another, and (2) by including as an item of gross income his total bank deposits for the year in question.
FINDINGS OF FACT.
The petitioner is an individual residing at Binghamton, N.Y. In the taxable year he was a member of a partnership engaged in the sale of rugs and similar articles on the installment plan. His tax return for such year was made out by his partner. All the books of the partnership and of the petitioner were destroyed by fire on July 4, 1926.
Some time in 1924 the petitioner*2498 exchanged a parcel of real estate including a nine-family tenement house thereon, located in Johnson City, N.Y., for another parcel of real estate with a frame dwelling thereon, located in Binghamton, N.Y. The tenement house and the dwelling were each acquired for investment purposes. Neither property was unincumbered. There were first and second mortgages on the Johnson City property in the respective amounts of $6,500 and $9,600, and, as one of the conditions of the exchange, petitioner took back a third mortgage of the face value of $13,100. There was a first mortgage on the Binghamton property, in the amount of $2,400, which the petitioner assumed. In his determination of petitioner's tax liability for the year 1924, the respondent held that the cost of the Johnson City property was $20,000; that the fair market value of the Binghamton property at date of exchange was $8,500; and that the third mortgage received by the petitioner had a readily realizable value in the amount of 70 per cent thereof, and computed a realized profit of $10,110, which he included in petitioner's gross income for the year in question.
In the taxable year petitioner deposited all cash received*2499 in one bank and in one account. In such year he borrowed $5,590 which he deposited in such bank and account. This amount is included in the total bank deposits for the year 1924 which the respondent has included in the computation of petitioner's gross income for such year.
OPINION.
LANSDON: The petitioner claims that under the provisions of section 202(c)(1) of the Revenue Act of 1921, no taxable gain can be *1224 attributed to his exchange of encumbered real estate for other similar property with a mortgage back to himself upon the property sold and cites in support thereof decision of the Board in ; ; and . The law applicable to these transactions is section 203(b)(1) and (d)(1) of the Act of 1924, supplanting the section relied upon by the petitioner, which provides as follows:
(b) (1) No gain or loss shall be recognized if property held for productive use in trade or business or for investment (not including stock in trade or other property held primarily for sale, nor stocks, bonds, *2500 notes, coses in action, certificates of trust or beneficial interest, or other securities or evidences of indebtedness or interest) is exchanged solely for property of a like kind to be held either for productive use in trade or business or for investment, or if common stock in a corporation is exchanged solely for common stock in the same corporation, or if preferred stock in a corporation is exchanged solely for preferred stock in the same corporation.
(d) (1) If an exchange would be within the provisions of paragraph (1), (2), or (4) of subdivision (b) if it were not for the fact that the property received in exchange consists not only or property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property.
It will be seen that section 203(b)(1) specifically excepts from its provisions "bonds, notes, choses in action, certificates of trust or beneficial interest, or other securities or evidence of indebtedness or interest." We are of the opinion that the phrase*2501 "like kind" must be construed to exclude such property. In exchange for his Johnson City property the petitioner received other real estate plus a mortgage, the face value of which was $13,100, but which the respondent determined had a readily realizable value when received of 70 per cent thereof. No evidence appears in the record from which we can determine that this mortgage did not possess a readily realizable market value when received, or that such value, if any, was less than that assigned to it by the respondent. It is, therfore, obvious that the petitioner has failed to sustain this allegation of error and that the determination of the respondent in reference thereto must be approved.
The petitioner has proved that the deposits to his bank account in the taxable year included borrowed money in the amount of $5,590. Since borrowed funds do not constitute income, this amount should be deducted from the gross income of the petitioner for the taxable year, as determined by the respondent.
Decision will be entered for the petitioner under Rule 50.