*1382 Where an undivided one-half interest in property that was the subject of an accepted option to sell was, pursuant to an intention expressed previous to the acquisition of the property, deeded by taxpayer to his wife, both then executing the contract to sell and the deed to purchaser, and the purchase money was paid in two checks of equal amounts, one being drawn and delivered to the wife, who reinvested the proceeds in her own name and has always retained all beneficial interest therein, held, that there was an effective gift of half the corpus of the property and the wife is taxable with profit on her share in the same.
*21 The deficiency in income taxes for the year 1925 determined by respondent amounts to $3,414.54. The sole error alleged is the inclusion in taxpayer's income of the entire amount of profit derived from the sale of certain realty, it being alleged that one-half thereof belonged to taxpayer's wife.
FINDINGS OF FACT.
Petitioner was married in 1917 and resides in Cambridge, Massachusetts. In the spring of 1924 he bought*1383 for $80,000 a piece of ground in Cambridge. The money to accomplish the purchase was *22 borrowed from petitioner's father, some $15,000 worth of securities being put up as collateral. Previous to purchase petitioner told both his father and his wife that the ownership was to be divided equally between himself and wife. He took title in his own name because he thought it would be easier to handle thus.
On July 8, 1924, petitioner gave an option to purchase the property to one Densmore (an undisclosed agent for Maynard) at a named price of $135,000, receiving $2,000 consideration for the option. On November 4, 1924, petitioner was notified by his brokers that the option had been exercised.
Petitioner consulted a lawyer and was advised that the wife's interest should be made a matter of record. On November 26, 1924, petitioner deeded to his wife an undivided one-half interest in the property.
On December 2, 1924, petitioner and his wife entered into a contract of sale with Maynard (Densmore's principal), all three signing, by the terms of which the two Wrights agreed to sell and cause to be conveyed to Maynard, in consideration of the payment of $135,000, the property*1384 in question.
On January 2, 1925, petitioner and his wife, as tenants in common, executed to Maynard a quitclaim deed to the property, which was duly registered and recorded. Maynard paid for the property the balance of $133,000 with two checks for $66,500 each, one being drawn to petitioner's order and the other to the order of petitioner's wife, said checks being delivered accordingly.
Petitioner's wife received her check and invested the proceeds thereof in securities registered in her own name and petitioner has never received from her any of these securities or the income therefrom.
Respondent treated all of the profit from the sale as income of petitioner.
OPINION.
VAN FOSSAN: In ; affd., , we stated "the rule to be that income per se can not be assigned to relieve the assignor of the tax levy, but where the thing assigned was a property right, real or personal, productive of income, income thereafter arising from such property is income to the assignee by virtue of his ownership."
A situation very similar to the instant case was considered by the Board in *1385 . There petitioner signed a contract on November 29, 1920, to sell his home for $115,000, receiving $25,000 on account. Pursuant to a previous oral promise, on December 29, 1920, he deeded a one-half interest in the property to his wife, at the same time assigning to her a one-half *23 interest in the contract to sell. The closing took place on January 3, 1921. The husband, with the wife's consent, deposited the entire purchase price in his personal bank account, crediting his wife with one-half thereof on his books of account and subsequently turning over to her an equivalent amount of assets. The Board held that the wife effectively acquired a one-half interest in the property and the contract to sell and when the sale was later consummated she was taxable with one-half the profit.
If there be any substantial difference between the above case and the case at bar the advantage thereby accruing is all with the petitioner. In the instant case the deed to the wife preceded the signing of the contract to sell. The contract to sell was actually signed by both petitioner and his wife, no assignment being involved. Further, *1386 we note that the purchase money was paid in two checks, one each to the petitioner and his wife, and that petitioner never received or controlled in any way the share intended for his wife, a more conclusive state of facts than obtained in the Walworth case.
The reasoning which impelled the Walworth decision, which has been cited with approval in ; ; and , we believe to be sound and to apply with equal or greater force in the instant case.
The transfer of the undivided one-half interest in the corpus of the property preceded the sale. This transfer was of a very real interest in the property itself and was not a mere assignment of income. The present case presents a consistent treatment - an expressed intention to deed half the property to the wife, the deed in pursuance of the intention, the joining of both husband and wife in the contract to sell and the consequent deed, the individual payments to each, and the permanent retention of the proceeds by each.
Under these facts we hold respondent to be in error in taxing the entire profit*1387 to petitioner.
Decision will be entered for the petitioner.