*757 1. TRUSTS. - Held, that petitioner was the trustee of a liquidating trust which was subject to tax under section 161 of the Revenue Act of 1936 upon its entire net income for the year 1937.
2. DEPRECIATION. - Held, that the basis for depreciation is the fair market value of the property at date of foreclosure sale.
*1247 This proceeding involves an income tax deficiency of $91.86 for the taxable year ended December 31, 1937.
The issues presented are whether the respondent erred in determining: (1) that during 1937 the Detroit Trust Co. was the trustee of a liquidating trust subject to tax under section 161 of the Revenue Act of 1936, instead of being merely the agent for certain bondholders, as contended by petitioner; (2) in the alternative, if the taxpayer was a trust, in failing to determine that the trust's net income was not taxable to petitioner because either (a) it was to be distributed currently by the fiduciary petitioner to the beneficiaries within section 162(b) of that act, or (b) that it was used to discharge legal*758 obligations of the beneficiaries and was thus properly paid or credited to them under section 162(c) of that act, as contended by petitioner; and (3) that the bid price of certain property here involved and acquired at foreclosure sale was the proper basis for determining depreciation allowable for 1937 rather than the market value of such property, as contended by petitioner. An assignment of error, that respondent failed to allow a personal exemption of $1,000, has apparently been abandoned and will be so considered.
The proceeding has been submitted upon the pleadings, testimony, and a stipulation of facts embracing certain exhibits. The stipulated facts not set forth herein are incorporated by reference.
FINDINGS OF FACT.
The Detroit Trust Co., petitioner herein, is a Michigan corporation, with its principal office in Detroit, Michigan. For the calendar year 1937 it filed with the collector of internal revenue for the district of Michigan a fiduciary income tax return, Form 1041, which sets forth the name of the trust as "James J. Reilly" and the name of the fiduciary as "Detroit Trust Company, Trustee For Owners of Certificates of Beneficial Interest."
Upon default*759 in payment of principal due on July 1, 1931, and of interest due on July 2, 1932, on outstanding mortgage bonds secured by a $90,000 mortgage theretofore executed by James J. and Sarah C. Reilly on certain apartment house property situated in Detroit, Michigan, the Detroit Trust Co., as trustee under the mortgage, declared all outstanding bonds and interest due thereon to be immediately due and payable and, in due course, brought foreclosure proceedings.
At the foreclosure sale on January 8, 1936, the property was purchased by the Detroit Trust Co., as trustee for the benefit of the bondholders, who, in the preamble to the hereinafter mentioned "declaration of trust"' are stated to have empowered that company to so *1248 act in their behalf by virtue of an instrument designated as a power of attorney. The price bid for the property was $7,988.55. The fair market value of the property at the date of purchase by the Detroit Trust Co., as trustee for the bondholders, was not less than $37,000, of which $31,000 was allocable to the value of the buildings. At the time of such acquisition of the property there were outstanding undischarged taxes and liens thereon amounting to*760 a total of $11,556.38.
Under date of January 30, 1936, the mortgagors of the property executed a quitclaim deed thereto to the Detroit Trust Co.
On May 12, 1936, the Detroit Trust Co. executed a formal "declaration of trust", naming itself as trustee thereunder. The trust instrument sets forth in detail the circumstances surrounding the mortgage and the foreclosure sale of the property and the acquisition thereof by the Detroit Trust Co. "as Trustee" for the bondholders and that the "Trustee" proposed to issue each interested party certificates of beneficial interest.
The trust instrument further states that "NOW, THEREFORE, the Trustee, in consideration of the premises, does by these presents declare that the above described land and premises were acquired by Trustee under the power of attorney aforesaid and are now held and will continue to be held by siad Trustee by virtue thereof in trust only for the use and benefit of the holders from time to time of such certificates of beneficial interest to be issued by Trustee as hereinafter set forth * * *."
The trust instrument provides, inter alia, that the complete legal and equitable title to the property is vested in*761 the Trustee as fiduciary and that the beneficiaries had an interest in only the avails thereof; that the "primary purpose of this trust is for the Trustee to sell" the property and that "Upon any such sale being made, the proceeds of such sale, after deduction of all disbursements and expenses and/or the repayment therefrom of any borrowed money with interest, all as hereinafter provided, shall be divided amongst the holders of said certificates of beneficial interest"; that the Trustee shall have "full power and authority to manage, operate, administer and maintain" the property and with certain limitations to lease the same upon such basis as will permit the sale thereof; that the Trustee may borrow or itself advance moneys for paying all taxes, carrying charges, and expenses in executing the purposes of the trust; that for moneys borrowed the Trustee may mortgage the property as security therefor and any moneys advanced by the Trustee including "all funds heretofore advanced by the Trustee prior to the execution and delivery hereof, whether as Mortgagee or in connection with the acquisition of said lands or property or carrying the same, or the operation thereof, together with the*762 interest thereon, shall be a charge on *1249 and payable out of the first available receipts from the operation of said premises, or from the sale thereof and the Trustee shall have a lien against such receipts and the Trust Estate until paid."
The trust instrument further provides that "the net rentals, after the deduction of all operating expenses and the repayment of advances or borrowings with interest as above set forth, shall be distributed proportionately amongst the certificate holders in like manner as hereinabove provided for a purchase price;" that the trustee may set a minimum limit upon the amount of distributions made out of rentals, purchase price, or other receipts and may set aside out of the rents, issues, profits, and proceeds of the property such reserves for repairs, taxes, etc., as in its discretion may may be expedient; that for any expenses incurred in connection with the trust the trustee shall have a first lien on all funds derived from rentals, interest, or income payments, or as purchase price, which lien shall be payable to and collected by the trustee out of the first moneys received by the trustee from the property; and that the trustee shall*763 keep proper books of accounts, including a certificate register, and make an annual report to the certificate holders showing receipts and disbursements of and from the property and a general statement of the trust's activities and business of the preceding year.
During the calendar years 1936 and 1937 the Detroit Trust Co., as trustee under the above mentioned trust instrument, operated the property and used all the income derived therefrom to discharge back taxes and foreclosure expenses which had accrued prior to the date of its acquisition of the property. The amounts thus paid during 1937 totaled $4,113.70.
On its fiduciary return filed for 1937 the Detroit Trust Co., as trustee, reported net rentals received after taking certain deductions, including depreciation in the amount of $1,240 based on an appraised value of $31,000 for the apartment building, and also showed all of its net income as being allocated to the beneficiaries as per an attached schedule. No net income was reported as being taxable to the trust.
The respondent determined that the petitioner, the Detroit Trust Co., was trustee of a liquidating trust subject to tax upon its entire net income during*764 the calendar year 1937 in an amount as recomputed by him on the basis that none of its net income was currently distributable to the beneficiaries. The respondent also disallowed $1,047.12 of the claimed deduction for depreciation.
OPINION.
TYSON: The petitioner's contention, that the relationship between the Detroit Trust Co. and the former owners of the mortgage bonds was that of principal and agent, is untenable. In our opinion, no *1250 extended discussion of this contention is necessary, for the "declaration of trust" executed on May 12, 1936, clearly created a legally existing trust of which the Detroit Trust Co. was the trustee and as such held legal title to the property and operated the same during 1937 for the purposes set forth in that instrument. We hold that such trust was established primarily for the acquisition and liquidation of the property involved for the benefit of the beneficiaries thereof and is subject to tax as a pure trust under section 161 of the Revenue Act of 1936, as determined by respondent. *765 ; cf. ; ; and .
The petitioner's alternative contentions that the net income of the trust was not taxable to it for the reasons either (a) that such income was currently distributable to the beneficiaries under section 162(b) of the Revenue Act of 1936 or (b) it was properly "paid or credited" to them during the taxable year under section 162(c) of that act because used to discharge legal obligations of the beneficiaries, must be denied. Petitioner's alternative contention (a) is denied because under the provisions of the trust instrument the trustee was required to deduct from current gross income all disbursements and expenses, including taxes and costs of foreclosure of the mortgage before any portion of its income might be distributed to the beneficiaries and during the taxable year 1937 all the income of the trust was expended in paying accrued taxes and foreclosure expenses, leaving no amount "to be currently distributed by*766 the fiduciary to the beneficiaries" within section 162(b), supra. . Petitioner's alternative contention (b) is denied; because all the trust income for 1937 was actually used to discharge accrued taxes and foreclosure expenses which had accrued prior to the trust's acquisition of the property and thus no amount of the trust income was actually "paid" to the beneficiaries within the provisions of section 162(c), supra; and, further, because no amount was properly "credited" to the beneficiaries under 162(c), supra, by reason of the payment of such taxes and foreclosure expenses, since the beneficiaries of the trust never owned the premises, those premises having been acquired by the trust as a separate entity, and the beneficiaries were not personally liable for such taxes and foreclosure expenses, which were paid by the trustee in 1937 pursuant to the direction of the instrument creating it, and thus no part of the trust income for 1937 was "credited" to the beneficiaries constructively or otherwise.
Because of the necessity that the trust first pay all taxes and foreclosure expenses, there was*767 no income for the taxable year remaining which was, or could be, held or accumulated by the trustee in its discretion, *1251 or in the discretion of the grantors, for future distribution to the grantors, nor was the payment of such taxes and foreclosure expenses made in discharge of any legal obligations of the grantors; and for these reasons, if no other, section 167(a)(1) of the Revenue Act of 1936 has no application here, as contended by petitioner on brief.
In regard to the third issue presented, the petitioner contends that the trust is entitled to deduct depreciation computed on a basis of $31,000, representing the fair market value of the building on the premises at date of the trustee's purchase thereof at foreclosure sale, for the reason that the bid price did not represent the actual value of the property acquired. On this issue petitioner's contention must be sustained upon authority of ; ; and *768 . We hold that respondent erred in computing depreciation for 1937 on the basis of the price bid at the foreclosure sale.
Decision will be entered under Rule 50.