1929 BTA LEXIS 2596">*2596 Commissioner's determination approved in the absence of proof of the proper basis for computing the gain from the sale of stock acquired in various ways.
16 B.T.A. 391">*391 These two cases wre consolidated for hearing and decision. For the calendar year 1922 the Commissioner determined a deficiency in the case of Jack J. Joseph, in the amount of $834.62 and in the case of Helen Joseph, a deficiency of $933.23. Jack J. Joseph alleges that the Commissioner erred in disallowing the amount of $9,140.17 as cost of certain shares of stock which he sold in 1922. Helen Joseph alleges a similar error in disallowing the amount of $7,616.85.
FINDINGS OF FACT.
The petitioners are husband and wife and reside in Canton, Ohio.
In 1908 Jack J. Joseph entered into a partnership with his father B. A. Joseph. Their firm was known as B. A. Joseph & Co. and it operated a retail furniture business under the name of Globe Furniture & Carpet Co. at Canton, Ohio. In 1912 they gave a check of the partnership for 100 shares of stock in the Mann Company, a New Jersey corporation. 1929 BTA LEXIS 2596">*2597 The cost of this stock to the Josephs was $14,00. The Mann Company proved to be successful. The only record which the Josephs maintained of the investment in Mann Company stock was in an account in the partnership books entitled "Mann Company stock." To this account was charged the original cost of the stock, and in this account from time to time various debit and credit entries were made. The capital accounts of the two partners were never changed on account of the purchase of the Mann Company stock.
B. A. Joseph died intestate in October, 1918, and for some time thereafter the business of the former partnership was continued by Jack J. Joseph on account of his mother, his four sisters and himself, who were the only heirs at law of B. A. Joseph. The books of the former partnership were likewise continued and on these books there was a credit balance in the capital account of Mrs. B. A. Joseph as of December 31, 1918, of $56,145.79.
16 B.T.A. 391">*392 On January 2, 1919, Jack J. Joseph purchased his mother's interest in the estate of B. A. Joseph, for which he paid her $67,868. In determining the amount which he should pay his mother, Jack J. Joseph deducted one-sixth of the amount1929 BTA LEXIS 2596">*2598 at which the Mann Company stock was carried on the books of the partnership from the capital account of his mother as shown on the partnership books, and from that amount deducted 20 per cent of one-sixth of the accounts receivable of the partnership and to this amount added $18,333.33, representing 16 2/3 shares of Mann Company stock at $1,100 a share.
On January 2, 1920, Jack J. Joseph entered into an agreement with his wife whereby he transferred to her a five-elevenths interest in everything he owned at that time in consideration of her release of her dower rights in his estate.
In 1922 the then copartners in the Globe Furniture & Carpet Co., including the petitioners, sold their interests in the Mann Company stock and the petitioners realized a profit from the sale.
In determining the deficiency the Commissioner, in order to compute the profit realized by the petitioners from this sale, used a proportionate part of $14,400 to represent the cost of the Mann Company stock to the petitioners. In the deficiency notice received by Jack J. Joseph, the following statement appears:
The amount of $16,757.02 paid by you to your mother, which you contend is additional cost on1929 BTA LEXIS 2596">*2599 the sale of the Mann Company stock, is considered as part of the purchase price of the partnership interest and, therefore, is a capital expenditure for the partnership.
In the deficiency notice received by Helen Joseph a similar statement appeared.
OPINION.
MURDOCK: Counsel for the parties, particularly counsel for the respondent, seem to attach considerable importance to the question whether the Mann Company stock was or was not an asset of the several partnerships which existed between the time that the stock was purchased and the time that it was sold. We have not attempted to decide this question because in our opinion the decision of it would not be helpful in the decision of these cases themselves. The two petitioners admit that the Mann Company stock was sold in the year 1922 for a certain amount about which there is no controversy, and that they each received profits from the sale, but they contend that the Commissioner has incorrectly computed their respective profits from this sale, due entirely to the fact that he has used an incorrect basis for the computation of this gain. This being so, and in order to receive a favorable decision from this Board, it was1929 BTA LEXIS 2596">*2600 incumbent upon each of them to prove the correct basis for the computation of his or her gain from this transaction. For several reasons, a few 16 B.T.A. 391">*393 of which we will point out, the petitioner's evidence is inadequate to justify our changing the Commissioner's determination.
Fourteen thousand four hundred dollars was paid in 1912 for 100 shares of stock in the Mann Company. Thereafter Jack J. Joseph either owned 50 shares of this stock as an individual or else he owned a partner's interest in all of the stock which formed an asset of the partnership. The situation with regard to his father was similar until he died intestate in 1918. Jack J. Joseph, as an heir, then became entitled to a fractional part of his father's share of or rights to the Mann Company stock, and if later he had sold this interest, the correct basis for his gain or loss from the transaction would be the fair market value of the interest in this stock at the time this part of his father's estate was distributed. Charles E. Moser et al.,12 B.T.A. 672">12 B.T.A. 672. See also 1929 BTA LEXIS 2596">*2601 Matthiessen v. United States,65 Ct.Cls. 484; certiorari denied; 278 U.S. 609">278 U.S. 609, 49 Sup.Ct. 13. Or, if he sold only a part of this interest, then the basis would be the value of the proportionate part as of the date received. Neither the date that he received his interest in his father's estate nor, what is more important, the value of the Mann Company stock at such date has been proven. It fact, this feature of the case seems to have been overlooked by the petitioners' counsel.
Jack J. Joseph purchased from his mother the interest which she received in her husband's estate, including her interest in the Mann company stock. He thus acquired an additional interest in the Mann Company stock. If later he sold this interest, the correct basis for computing his gain or loss from this sale would be the cost to him of the interest. Likewise, if he sold a part of this interest the basis would be the proportionate part of the cost. A difficulty in this case is to determine the cost of this interest to Jack J. Joseph. Whether the mother's interest in the Mann Company stock was or was not separate from the partnership assets, at any rate all that Jack1929 BTA LEXIS 2596">*2602 J. Joseph acquired from his mother he acquired in one transaction in which he paid her approximately $67,868 in a lump sum and the difficulty is to determine how much of this lump sum, if any, can properly be allocated to the purchase of his mother's interest in the Mann Company stock. Jack J. Joseph was the only witness in the case. He testified that in connection with the transaction which he had with his mother whereby he paid her approximately $67,868, he assigned a value of $1,100 a share to the Mann Company stock and to the partnership accounts receivable a value equal to 80 per cent of their book value. He did not testify that his mother accepted this allocation or that she knew of it. It does not appear from his testimony that his opinion of the value of the Mann Company stock at the time of the transaction in question is entitled to any weight. 16 B.T.A. 391">*394 Furthermore, it does not appear from his testimony that his opinion that the accounts receivable were worth only 80 per cent of the amount at which they were carried on the partnership books is entitled to any weight. We are not justified from the evidence in concluding that the amounts at which the other assets of1929 BTA LEXIS 2596">*2603 the partnership were carried on the books represented the fair value of those assets at the time of this transaction. There was no good will included among these assets, and yet we know that the business had been successfully conducted for a number of years. We can not assume, as the petitioners would have us do, that there was no valuable good will attached to the business. Furthermore, the contention of Helen Joseph seems to be that her husband gave her whatever interest she had in the Mann Company stock and therefore the basis for computing her gain would be the same as it would be had the donor sold the stock. This contention is incorrect for two reasons. In the first place, it appears that her husband did not give her the stock, but, on the contrary, transferred it to her for a consideration, namely, the release of her dower interest in his estate. In the second place, even if he had given her the stock, the basis for the computation of her gain or loss upon the sale of the stock would be the fair market value of the stock at the time it was given to her, which value has not been proven. Revenue Act of 1921, sec. 202(a)(2).
Judgment will be entered for the respondent.1929 BTA LEXIS 2596">*2604