*3865 1. The fact that the Board may determine that no deficiency exists because of a failure of the Commissioner to give credit for taxes assessed and paid on the original return will not oust the Board of jurisdiction of the proceeding instituted on account of the determination of the deficiency by the Commissioner.
2. The filing of a suit by a taxpayer in a United States District Court on account of an alleged overpayment of taxes will not oust the Board of jurisdiction on account of a deficiency notice for the same year, whether such deficiency notice was issued prior or subsequent to the filing of the suit.
3. Two corporations filed a consolidated return on which the entire tax liability was assessed against the parent company. The Commissioner ruled that the two corporations were not affiliated, but in determining a deficiency against the subsidiary, allowed no credit to it on account of any part of the tax which was assessed on the consolidated return. Held to be erroneous and the credit to which the subsidiary is entitled determined.
4. The transfer on April 15, 1919, by tenants in common of their undivided interests in a number of oil leases to a corporation*3866 in exchange for the capital stock of that corporation resulted in taxable income under section 202 of the Revenue Act of 1918, and the fair market value of the capital stock received is properly determinable under the circumstances of this case upon the basis of the fair market value of the assets exchanged for the stock.
5. Section 331 of the Revenue Act of 1918 held to apply in determining the invested capital of the corporation which received the assets in the foregoing transaction.
*102 The deficiency notices which form the basis of these proceedings show deficiencies as follows: Elmhurst Investment Co., 1919, $153,846.15; Orlando Petroleum Co., period April 15, 1919, to December 31, 1919, $154,767.19; and C. A. O'Meara, 1919, $1,688.91.
The questions at issue are: (a) The jurisdiction of the Board in the appeals of the Orlando Petroleum Co. and the Elmhurst Investment Co.; (b) credit to which the Orlando Petroleum Co. and the Elmhurst Investment Co. are entitled as separate companies on account of the tax assessed and paid on a consolidated*3867 return filed by these companies; (c) whether the Elmhurst Investment Co. and C. A. O'Meara realized a taxable gain when they assigned and transferred an undivided interest in certain oil leases to the Orlando Petroleum Co.; (d) whether section 331 of the Revenue Act of 1918 is applicable in determining the invested capital of the Orlando Petroleum Co.
In accordance with the suggestion of counsel for the petitioners and because of the related character of the parties and the questions involved, the three appeals were consolidated and heard together.
The facts as set out below are for the most part covered by stipulations of the parties.
FINDINGS OF FACT.
The Elmhurst Investment Co. is a corporation having its office and place of business in Topeka, Kans., and the Orlando Petroleum *103 Co. is a Kansas corporation with its office in Topeka. C. A. O'Meara is a citizen of the United States, residing in Topeka, Kans.
Prior to November 14, 1918, but subsequent to March 1, 1913, certain oil leases were owned by the following persons and corporations in the following proportions:
| F. E. Rose | Undivided one-fourth |
| S. W. Forrester | Undivided one-fourth |
| Elmhurst Investment Co., a corporation | Undivided one-half |
*3868 November 14, 1918, F. E. Rose assigned and transferred his one-fourth interest to the Prudential Trust Co. of Topeka, Kans., trustee, to be held in trust. December 9, 1918, S. W. Forrester assigned and transferred his one-fourth interest to the same trustee and for the same purpose.
December 9, 1918, S. W. Forrester, C. W. Horn, N. B. Burge, C. B. Burge, and C. A. O'Meara notified the said Trust Company, trustee, that they were the owners of the undivided one-half interest in the following proportions:
| S. W. Forrester | 29/96ths |
| C. W. Horn | 12/96ths |
| N. B. Burge | 5/96ths |
| C. B. Burge | 1/96th |
| C. A. O'Meara | 1/96th |
The remaining forty-eight ninety-sixths undivided interest was owned by the Elmhurst Investment Co.
While these leases were held in common, and on September 1, 1918, Well No. 1 on the Joliffe lease was drilled in dry and was finally abandoned as a dry hole.
February 4, 1919, while the leases were still held in common, Well No. 1 on the West Gillette lease was brought in with a flush production of 1,200 barrels.
March 31, 1919, the tenants in common last above referred to entered into the following contract:
Proposal for the Organization*3869 of The Elmhurst Petroleum Company (or such other name as may be agreed upon).
We, the undersigned, are the owners of the oil and gas leases hereinafter mentioned, in the following proportions:
| The Elmhurst Investment Co | 48/96 |
| S. W. Forrester | 29/96 |
| C. W. Horn | 12/96 |
| N. B. Burge | 5/96 |
| C. A. O'Meara | 1/96 |
| C. B. Burge | 1/96 |
It has been found to be extremely awkward and inconvenient to make contracts or to do business with reference to the development and operation of said properties under such diverse ownership of the same. It is therefore *104 agreed by and between said owners that for the purpose of placing the title to said leases under a single ownership, and for greater convenience in making contracts and doing business, that a corporation be created for the purpose of taking the title to said properties, holding and developing the same, and disposing of the products therefrom, all in the interest of the present owners thereof.
We, the undersigned, hereby agree to incorporated a company under the laws of the State of Kansas, to be known as The Elmhurst Petroleum Company (or such other name as may be agreed upon at the time), said company to have*3870 a capital stock of five million dollars ($5,000,000), divided into fifty thousand (50,000) shares of One Hundred Dollars ($100) each.
After the above-named company has been organized we will each convey to it our respective interests in said oil and gas leases being the following leases on lands situate in Township Twenty-two (22), Range Four (4), East, Marion County, Kansas.
,(here follows a detailed description of the leases involved.)
Amounting in all to twelve hundred acres.
It is further agreed by and between ourselves that stock shall be issued to us for the purpose of representing our respective interests in said property, in exact proportion thereto, and in amounts as follows:
| Shares | |
| Elmhurst Investment Co | 23,040 |
| S. W. Forrester | 13,920 |
| C. W. Horn | 5,760 |
| N. B. Burge | 2,400 |
| C. A. O'Meara | 480 |
| C. B. Burge | 480 |
| Total | 46,080 |
The number of shares which will remain undisposed of will be about 3,920.
Directors and officers of said company shall be chosen as agreed upon among ourselves and any directors selected from outside our number shall be chosen with the understanding that they are to represent us.
We further agree that any moneys*3871 required for the development of these properties shall be furnished by us in proportion to our respective interests therein. For the purpose of protecting the credit of said company, shares of stock may be issued to cover the amounts so furnished in lieu of the issuance of obligations of the corporation if such plan is thought best. Under no circumstances will the corporation sell any of its stock to anyone other than the parties hereto.
In carrying out the contract of March 31, 1919, the Orlando Petroleum Co. was incorporated on April 15, 1919, under the laws of Kansas, with its principal office and place of business at Topeka, Kans., with an authorized capital stock of 50,000 shares of the par value of $100 each. The oil leases described in the foregoing contract of March 31, 1919, were assigned to the Orlando Petroleum Co., with the exception of one of the leases listed in the contract and known as the Holman lease. This lease has been sold to one De Golia, for $60,000, and the claim against De Golia in this amount *105 was assigned to the Orlando Petroleum Co. and afterwards collected by it.
Pursuant to the contract of March 31, 1919, upon the request of S. W. *3872 Forrester, C. W. Horn, Napoleon B. Burge, C. B. Burge, and C. A. O'Meara, the beneficiaries under the aforementioned declaration of trust, the Prudential Trust Co. on April 15, 1919, executed to the Orlando Petroleum Co. an assignment of the respective interests of the beneficiaries in the oil leases heretofore mentioned. On the same day the Elmhurst Investment Co. executed to the Orlando Petroleum Co. an assignment of the remaining undivided interest in the leases.
The cost of all the property of every description transferred to the Orlando Petroleum Co. by the parties to the above-mentioned contract of March 31, 1919, was $105,423.21.
The fair market value of all the property of every description transferred to the Orlando Petroleum Co. by the parties to the aforementioned contract of March 31, 1919, at the time of the transfer on April 15, 1919, was $1,096.339.87.
At a meeting of the stockholders of the Orlando Petroleum Co. April 15, 1919, a resolution was adopted reciting and accepting the proposal to transfer the leases in consideration of the execution, issue and delivery of certificates of the capital stock of this company to the amount of 46,080 shares, to be issued*3873 to said parties in proportion to their respective ownerships in said leases, as follows, to wit:
| Shares | |
| Elmhurst Investment Company | 23,040 |
| S. W. Forrester | 13,920 |
| C. W. Horn | 5,760 |
| N. B. Burge | 2,400 |
| C. A. O'Meara | 480 |
| C. B. Burge | 480 |
The resolution further provided:
The transfer of the above and foregoing leases to include the transfer of the drilling rigs, casing, tools, and all other personal property now on said leases, or used in connection therewith, or belonging thereto owned by the Elmhurst Investment Company and the Prudential Trust Company, or either of them, and also the office furniture and fixtures heretofore used and now owned by said parties in their offices at Peabody, Kansas.
The transaction was completed and the stock issued in the proportions stated above.
Prior to the transfer of the leases and personal property appertaining thereto, the Orlando Petroleum Co. had no assets of any kind whatever.
Immediately after the transfer of the leases and personal property appertaining thereto to the Orlando Petroleum Co., the only assets possessed by that company were the leases and personal property so transferred, having a value of $1,096,339.87, *3874 as above set forth.
*106 The stock of the Orlando Petroleum Co. issued to the tenants in common, namely, the Elmhurst Investment Co., S. W. Forrester, C. W. Horn, Napoleon B. Burge, C. B. Burge, and C. A. O'Meara, was in exact proportion to the undivided interest of each in the oil leases and personal property transferred to the Orlando Petroleum Co.
After the transfer of the leases and personal property to the Orlando Petroleum Co., the tenants in common of the leases was in absolute control of the Orlando Petroleum Co. and owned all the issued capital stock thereof.
The Commissioner determined the fair market value of the stock of the Orlando Petroleum Co. on the basis of the value of the assets transferred to this corporation in exchange for its stock and, accordingly, found that a taxable gain was realized on April 15, 1919, on the basis of the difference between cost of the assets transferred and the fair market value of the stock as determined in the foregoing manner. None of this stock was sold at or about April 15, 1919, by the parties receiving the same, nor were there offers to sell or offers to buy at or about this time.
The parties have stipulated that*3875 the third item at the bottom of page seven of the deficiency notice dated November 16, 1926, and directed to the Elmhurst Investment Co., should read: "Sale price of oil leases $512,465.15" instead of $548,169.94.
It was further stipulated that the item "Net income per books, $356,076.05," as shown in a revenue agent's report of the Elmhurst Investment Co. for 1919, which was submitted in evidence, includes a profit of $155,000 realized from the sale of six oil and gas leases for $196,266.67, the cost of these leases being $41,266.67.
The description of the lands involved in these leases and the selling price, cost of each lease, and the profit realized from the sales, and the dates of the sales are as follows:
| Description | Selling price | Cost | Profit | Date |
| 1. SWSW., sec. 14 | $16,000.00 | $8,000.00 | $8,000.00 | Mar. 1, 1919 |
| 2. W. 1/2, sec. 9 | 64,000.00 | 24,000.00 | 40,000.00 | Do. |
| 3. E. 1/2 SE., sec. 15 | 1,266.67 | 1,266.67 | Feb. 24, 1919 | |
| 4. 120 A, sec. 16 | 45,000.00 | 6,000.00 | 39,000.00 | Apr. 30, 1919 |
| 5. E. 1/2 of NE., sec. 15 | 20,000.00 | 2,000.00 | 18,000.00 | Do. |
| 6. Oklahoma leases | 50,000.00 | Nil. | 50,000.00 | Oct. 25, 1919 |
| 196,266.67 | 41,266.67 | 155,000.00 |
*3876 It was agreed and stipulated by the respective parties that the correct tax liability of the Orlando Petroleum Co. for the period April 15, 1919, to December 31, 1919, if computed under section 331 of the Revenue Act of 1918, is $146,383.76.
It was stipulated that the agreement of the parties hereto that the fair market value of the leases and equipment transferred to *107 the Orlando Petroleum Co. on April 15, 1919, was $1,096.339.87 shall not be taken as an admission by the petitioners that the stock received therefor had a fair market value of that or any other amount.
February 20, 1926, the Orlando Petroleum Co. filed a claim for refund in the amount of $86,463.29 on account of alleged overpayment of income and excess profits tax for the year 1919, and on the same date the Elmhurst Investment Co. filed a claim for refund in the amount of $16,992.12 on account of alleged overpayment of income and excess profits tax for the year 1919. Prior to June 15, 1925, both of said taxpayers filed waivers of their respective rights to have the taxes due for said year 1919 determined and assessed within five years after the filing of the previously mentioned consolidated return.
*3877 The Elmhurst Investment Co. and the Orlando Petroleum Co. filed a consolidated return for the year 1919, which showed a consolidated tax liability of $297,748.91. The foregoing amount was paid by checks of the Elmhurst Investment Co., but of this amount the Orlando Petroleum Co. contributed $218,203.81 and the Elmhurst Investment Co. $79,545.10. A notation on each of the Elmhurst Investment Co.'s checks indicated the amounts applicable to the two companies in proportion to the amounts contributed by each. In this return the Elmhurst Investment Co. was shown as the parent company and the Orlando Petroleum Co. as the subsidiary company. The information return (Form 1122) filed by the Orlando Petroleum Co., showed $218,203.81 as the amount of the income and excess profits tax apportioned to the Orlando Petroleum Co. In addition to the consolidated return filed for the two companies and the information return filed for the subsidiary, a return on a separate basis was filed at the same time for each of the companies, showing the net income of each company, though these returns were incomplete in that no computation of invested capital was made and in that no computation of tax liability*3878 was shown thereon.
Subsequent to the filing of the aforementioned consolidated return, The Commissioner ruled that the Elmhurst Investment Co. and the Orlando Petroleum Co. were not affiliated for 1919 and that separate returns should have been filed by each of these companies for 1919. In the deficiency notice to the Orlando Petroleum Co. for 1919 on a separate basis, the Commissioner showed the following computation:
| Total income and excess profits tax | $154,767.19 |
| Previously assessed | None. |
| Additional to be assessed | 154,767.19 |
The explanation given in the deficiency notice for not allowing any credit for tax previously assessed was that the "amount of tax *108 assessed on the consolidated form filed by your company and the Elmhurst Investment Co. has been allowed as a credit against the tax liability of the last-named company." In the deficiency notice to the Elmhurst Investment Co., which was mailed three months later, credit for tax previously assessed was shown as follows:
| Total income and excess profits tax | $233,391.25 | |
| Previously assessed against the Elmhurst Investment | ||
| Company (Orlanda Petroleum Company, Subsidiary) | $297,748.91 | |
| Of which, under section 240 of the Revenue Act of 1918 | ||
| and as admitted by each of the above corporations, | ||
| the proportion of the Orlando Petroleum Company was | 218,203.81 | |
| And the proportion of the Elmhurst Investment Company | ||
| was | 79,545.10 | |
| Additional to be assessed | 153,846.15 |
*3879 After the receipt by the Orlando Petroleum Co. of a deficiency notice dated August 6, 1926, the Orlando Petroleum Co., on September 14, 1926, filed its petition in the United States District Court against the United States to recover the amount of its alleged overpayment of income and profits tax for the period from April 15, 1919, to December 31, 1919, and on the same day made service of process upon the defendants in this action.
September 15, 1926, the Elmhurst Investment Co. filed a petition in the United States District Court for the District of Kansas against the United States to recover an alleged overpayment of income and excess profits tax for 1919, and on the same day caused service of process to be served upon the defendant in said action. A deficiency notice for 1919 was mailed to this petitioner on November 16, 1926.
The two aforementioned actions were pending undetermined in the United States District Court at the time the hearings in these proceedings were held by the Board.
OPINION.
LITTLETON: At the hearing, the Orlando Petroleum Co. presented a motion asking that the Board rule that it has no jurisdiction in its appeal for the following reasons:
*3880 First, because in the stipulation it appears that the total income and excess profits taxes of this petitioner for the period covered by the deficiency letter, copy of which is attached to the petition, amount to $146,383.76; and said stipulation further shows that for the period covered by the deficiency letter, the petitioner filed its return on April 14, 1920, showing the amount of its tax at $218,203.81, and that this petitioner paid $218,203.81 as and for its income and excess profits taxes for the period covered by the letter, and therefore there was not and could not have been a deficiency, but was an overpayment.
*109 Second, for the reason that before this appeal was filed, this petitioner brought its action in the United States District Court for the district of Kansas, First Division, to recover the amount of its overpayment for the same taxes for the same period covered by the deficiency letter attached to the petition, and that that action in the United States District Court is pending undetermined.
The first reason overlooks the statutory provision that jurisdiction is conferred on the Board in any case in which the Commissioner determines a deficiency and*3881 an appeal is duly filed with the Board (section 274, Revenue Act of 1926). Whether or not the deficiency as determined is correct, it is the function of the Board to determine, but the fact that upon examination by the Board it is determined that the deficiency which the Commissioner determined was erroneous to the extent that no deficiency in fact exists, will not oust the Board of its jurisdiction. In this proceeding the Commissioner determined that this petitioner's total tax liability was $154,767.19; that no tax had previously been assessed and that accordingly a deficiency existed of $154,767.19. This petitioner duly filed an appeal, asking the Board to find that no deficiency exists on the ground that there had already been assessed on its original return, and it had paid, an amount in excess of the deficiency now shown. The establishing of the facts contended for by this petitioner would serve to extinguish the deficiency and show an overpayment, but it would not alter the fact that in the first instance the Commissioner had determined a deficiency.
The second ground for this motion is the pendency of a suit in a Federal District Court for the year on appeal before the*3882 Board. The deficiency notice which forms the basis of this appeal was mailed to this petitioner on August 6, 1926, and on September 14, 1926, an action was brought by this petitioner in a Federal District Court for the recovery of an alleged overpayment of income and profits tax for the period covered by the deficiency notice. A similar situation was before the Circuit Court of Appeals Third Circuit, in the case of Suhr v. United States, 18 Fed.(2d) 81, wherein it was held that a suit to recover as a refund an amount allowed by the Commissioner as a credit against a proposed additional assessment may not be maintained where an appeal from such assessment is pending before the Board of Tax Appeals. In its opinion, the court said:
Any taxpayer may appeal to the Board of Tax Appeals, but he must do so before his tax is assessed or collected. Section 274(a), Revenue Act of 1926 (44 Stat. 9, 55). If appeal has thus been made to the Board, the tax not having been paid, the appellant may not also proceed in the courts, until the Board has determined the question of deficiency. If that question is decided against him, he may then pay the deficiency and sue in the*3883 District Court to recover, or he may appeal to the Circuit Court of Appeals.
*110 The Board is of the opinion that the foregoing constitutes a sufficient answer to this petitioner's motion, and the motion for the dismissal of the appeal on account of lack of jurisdiction is accordingly overruled.
The next question raised in the petition of the Orlando Petroleum Co. relates to the credit to which it is entitled on account of taxes assessed and paid at the time of filing its original return. The material facts with which we are here concerned are as follows: The Orlando Petroleum Co. and the Elmhurst Investment Co. filed a consolidated return for 1919 in which was shown a consolidated tax liability of $297,748.91. At the same time, the Orlando Petroleum Co. filed an information return as a subsidiary on which it was stated that the amount of tax apportioned to it was $218,203.81. The parties have stipulated that in the payment of the total tax liability for the group of $297,748.91, the Orlando Petroleum Co. furnished $218,203.81 and the Elmhurst Investment Co. $79,545.10. The entire amount of $297,748.91 was assessed against the Elmhurst Investment Co., which company*3884 made payment of same with its own checks on which appeared notations of the amount applicable to each company, the notation with respect to each company being in agreement with the amount which the parties have stipulated as being furnished by each. In the deficiency notice which forms the basis of this appeal, and which was submitted in evidence, the respondent showed the amount previously assessed against the Orlando Petroleum Co. as "None" and accordingly found a deficiency of $154,767.19, the total tax liability of this petitioner. In the deficiency notice to the Elmhurst Investment Co. which was prepared some months later than the deficiency notice to the Orlando Petroleum Co., and which was likewise submitted in evidence, the respondent gave the Elmhurst Investment Co. credit of $79,545.10, and stated that the remainder of the $297,748.91, or $218,203.81 which had been assessed against the Elmhurst Investment Co. was properly applicable to the Orlando Petroleum Co.
The question is the effect to be given in determining a deficiency in the case of the Orlando Petroleum Co. to the assessments and payments made on account of its tax liability at the time the consolidated return*3885 was filed. Under the provisions of section 273, Revenue Act of 1926, it is the duty of the Commissioner to determine the deficiency upon the basis of the correct amount of tax, less the amount of tax shown by the taxpayer upon his return with other adjustments not here in issue. Section 240(a) of the Revenue Act of 1918 provides in part as follows:
In any case in which a tax is assessed upon the basis of a consolidated return, the total tax shall be computed in the first instance as a unit and shall then be assessed upon the respective affiliated corporations in such proportions *111 as may be agreed upon among them, or, in the absence of any such agreement, then on the basis of the net income properly assignable to each.
The deficiency was determined without allowing any credit to the Orlando Petroleum Co. for taxes assessed on the consolidated return in which its income was included. While there is insufficient evidence before us to substantiate a finding that there was an agreement which would control as to all apportionments of taxes as between the two companies, or the basis of the agreement which existed between them, we are of the opinion that the record before*3886 us justifies the conclusion that of the taxes assessed and paid on account of the tax liability shown on the consolidated return of the Elmhurst Investment Co. and the Orlando Petroleum Co. an amount of $218,203.81 was properly attributable to the latter company and should have been allowed as a credit against the total tax liability of this company in determining whether a deficiency exists. This amount is shown in the information return as apportioned to this company and is the amount furnished by this company to the Elmhurst Investment Co. which paid the tax, and showed by notations on its checks that this amount was applicable to the Orlando Petroleum Co. This is likewise in accord with the admission of the Commissioner in the deficiency notice to the Elmhurst Investment Co. which was submitted in evidence and which denies a credit to the Elmhurst Investment Co. of the entire tax assessed against it for the reason that $218,203.81 was applicable to the Orlando Petroleum Co. This was also, in effect, admitted by the respondent at the hearing.
The Board is accordingly of the opinion that in the redetermination of the tax liability of the Orlando Petroleum Co. credit should*3887 be given against such tax liability of $218,203.81 which was assessed and paid when the consolidated return in question was filed. Cf. Mather Paper Co.,3 B.T.A. 1">3 B.T.A. 1, and Cincinnati Mining Co.,8 B.T.A. 79">8 B.T.A. 79.
The next assignment of error relates to the appeal of the Elmhurst Investment Co. in which this petitioner asks the Board to rule that the Board should not proceed further with this appeal for the reason that prior to the issuance of the deficiency notice which forms the basis of its appeal this petitioner had duly brought an action in a Federal District Court for the recovery of an alleged overpayment of taxes for the period covered by the deficiency notice and such action was pending undetermined at the time of the hearing of this appeal.
The material facts with respect to this issue are that this petitioner filed a claim for refund for the overpayment of taxes in 1919. After six months had expired and the Commissioner had not taken action on this refund claim, this petitioner brought suit in a United States*112 District Court for the recovery of an alleged overpayment of taxes for 1919 in the amount of $8,655.73. Two months after*3888 this suit had been begun, the Commissioner issued a deficiency notice to this petitioner showing a deficiency of $153,846.15. Upon receipt of the deficiency notice, this petitioner filed a petition with the Board asking, among other things, that an order be entered abating this proceeding pending the determination of the matters in controversy in the Federal District Court, and also assigning various errors with respect to the determination. In other words, as we understand the issue, it is not a challenge of the jurisdiction of the Board, but the question is as stated by petitioner in its brief: "Where the jurisdiction of a district court of the United States has attached in an action by a taxpayer to recover an alleged overpayment of internal revenue taxes, is such jurisdiction arrested or impaired by the subsequent determination of the Commissioner of a deficiency and the mailing to the taxpayer of notice thereof under section 274 of the Revenue Act of 1926?"
The jurisdiction of the United States District Courts in actions to recover alleged overpayments of internal revenue taxes is conferred by the Judicial Code, § 24(20), which reads as follows:
Concurrent with the Court*3889 of Claims, * * * of any suit or proceeding commenced after the passage of the Revenue Act of 1921, for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws, even if the claim exceeds $10,000, if the collector of internal revenue by whom such tax, penalty, or sum was collected is dead or is not in office as collector of internal revenue at the time such suit or proceeding is commenced. * * *
Section 274(a) of the Revenue Act of 1926 provides as follows:
If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this title, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within 60 days after such notice is mailed (not counting Sunday as the sixtieth day), the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency. Except as otherwise provided in subdivision (d) or (f) of this section or in*3890 section 279, 282, or 1001, no assessment of a deficiency in respect of the tax imposed by this title and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 60-day period, nor, if a petition has been filed with the Board, until the decision of the Board has become final. Notwithstanding the provisions of section 3224 of the Revised Statutes the making of such assessment or the beginning of such proceeding or distraint during the time such prohibition is in force may be enjoined by a proceeding in the proper court.
The exceptions referred to in the preceding section are not material to the question here in issue. It therefore appears that the *113 action taken by the Commissioner was the action authorized and required of him under the statute for the assessment and collection of any deficiency which he may have considered due from this petitioner and that this course of procedure is entirely different from the right of this petitioner to seek a recovery of an alleged overpayment of taxes through an action in a Federal District Court under the authority*3891 of the Judicial Code as set out above. It is, of course, true that the Commissioner could interpose as a defense to such an action that there were taxes due in excess of the refund claimed by the petitioner, but the mere fact that such a defense could be interposed, does not mean that the same cause of action is being litigated in two courts of concurrent jurisdiction at the same time. The action of the Commissioner in issuing a deficiency notice was in compliance with the spirit and purpose of the statute to permit an adjudication of tax controversies prior to the time when payment would be required.
The petitioner relies in part on the reasoning set out in Shur v. United States, supra, wherein the court held that where an appeal was pending before the Board on account of an alleged deficiency a suit begun in a Federal District Court after the issuance of the deficiency notice was premature and should be dismissed. By analogy, this petitioner says, where the suit was begun before the issuance of the deficiency notice, the suit should take precedence over the appeal which was filed as a result of the issuance of the deficiency notice and require the Board to suspend action*3892 as far as the appeal is concerned until the suit is determined. This argument, however, overlooks the fact that where a deficiency has been asserted and jurisdiction has attached on the part of the Board, the Board not only may determine the extent to which a deficiency exists, but also may find that the petitioner is entitled to judgment on account of an overpayment, (section 284(e), Revenue Act of 1926). Concurrent jurisdiction thus exists between the District Court and the Board with respect to overpayments, but this condition does not extend to a controversy with respect to a deficiency. When an appeal is filed on account of the issuance of a deficiency notice, there is involved not only the deficiency but also an overpayment which might be found to be due on account of the issues in controversy. On the other hand, no provision is made in the jurisdiction conferred on the District Court to permit this court to accomplish the same results with respect to a deficiency as would be effected through an appeal to the Board. The motion of the Elmhurst Investment Co. for an abatement of action on its appeal pending the decision of the District Court in a suit for an alleged overpayment*3893 of taxes for the same year is accordingly overruled.
*114 The next question relates to the claim of the Elmhurst Investment Co. and C. A. O'Meara that they realized no taxable gain upon the transfer to the Orlando Petroleum Company of their undivided interests in certain leases in exchange for capital stock of this corporation, their contention being that the transfer was one which affected only the form of ownership and was not one of substance. These petitioners further contend that even if it should be found that a sale was effected when the transaction in question took place, no taxable gain could result for the reason that the stock received had no market value. With respect to the first contention advanced, the board had before it in Napoleon B. Burge and C. B. Burge,4 B.T.A. 732">4 B.T.A. 732, the identical question which is here presented (the Burge appeals involving two individuals who were similarly involved in the same transaction with which we are now concerned) and there held that the transfer of the leases for the capital stock was an exchange of property which resulted in taxable income under section 202 of the Revenue Act of 1918. *3894 We fail to find anything in the arguments advanced by counsel for the petitioners who appeared as amicus curiae in the Burge appeals which would cause us to reach a different conclusion in the cases at bar from that reached in the Burge appeals, in so far as it was there decided that the transaction in question was an exchange or sale of property.
In determining the taxable income realized in the Burge appeals, the Board held that the fair market value of the stock of the Orlando Petroleum Co. on April 15, 1919, was the same as the fair market value of the property transferred to this corporation on that date, which, in those proceedings as in these, the parties stipulated was $1,096,339.87. No proof was offered in the Burge appeals that the fair market value of the stock was different from that determined in the manner set out above. In the cases now under consideration, the petitioners seek to show that the stock of the Orlando Petroleum Co. had no market value on April 15, 1919, and therefore, no taxable income resulted when the exchange in question was effected. Three witnesses were offered in support of the foregoing contentions. The first witness, a*3895 man familiar with the stock in question and the oil leases which were transferred in exchange for this stock, testified that the stock on April 15, 1919, was speculative in character and had no market value to his knowledge. On cross examination in reply to a question as to what he meant by the statement that the stock had no market value, he said:
Well, I meant by that that there was no place where it was being sold and there were no sales of it made and none offered for sale, so far as I know, and I thought I had good opportunities to know.
*115 C. A. O'Meara, one of the petitioners in these proceedings, likewise testified that this stock was speculative and gave his reason for such a conclusion in the following testimony:
Q. I was asking you, Mr. O'Meara, why you state this stock was purely speculative or wholly speculative in view of the estimated value of these leases.
A. The reason this stock was speculative, as I started out to say, was that we had a bunch of leases down there that were wild-cat leases. We had drilled two holes, one a producer and one a dry hole, and as far as we had gone we had shown that there was no certainty of a producing field being*3896 found there.
Q. Am I to understand from your answer that this estimate of the value of the oil there was also speculative?
A. Wholly. Q. You say wholly? A. Wholly speculative. It could not be otherwise.He testified further that he did not offer his stock for sale at this time, and that he did not know of any offers to sell or buy this stock at this ime. The third witness, a stockbroker, testified that oil stocks were usually speculative and that he was prejudiced against them because as a rule they were not worth anything. He had no knowledge of offers to buy or sell this stock.
The Board is not convinced that the testimony of the foregoing witnesses justifies the conclusion that the stock in question had no market value on April 15, 1919. The fact that this stock was speculative does not mean that it had no market value; speculative stock may have a market value, but its value might be less because of its speculative nature. Apparently the speculation here involved was as to whether oil could be produced on the properties covered by the leases in question which were practically the only assets owned by the Orlando Petroleum Co. When the parties stipulated*3897 that the assets had a fair market value of over one million dollars, it must be assumed that this took into consideration the lower value which must be given to proven, as compared with unproven, territory. Nor does the testimony that no stock was sold show there was no market value attaching to this stock. The entire capital stock of the Orlando Petroleum Co. was issued to a corporation and five individuals, and in the contract under which the leases were transferred in exchange for this stock, it was provided that: "Under no circumstances will the corporation sell any of its stock to anyone other than the parties hereto." The stock was thus not only closely held in the first instance, but also these parties arranged to control any future sales of the stock by the corporation. It is, therefore, not surprising that the stock was not offered for sale at or about the date of organization of the corporation, and that we have no evidence of sales at this time.
In such circumstances, should the Board say that a transaction does not result in a taxable profit when the assets sold cost approximately *116 $100,000 and had a value at the date of the exchange of approximately $1,000,000? *3898 We think not. It would be an unusual proposition to say that a profit is not realized under such conditions and as a corollary thereto that in the case of future sales of this stock the entire sales price would be profit or that we should revert to the original cost of approximately $100,000 as a basis of determining gain or loss on the transaction when there has been an intervening sale at a time when the assets back of the stock had appreciated to a value of approximately $1,000,000. The only alternative offered by the petitioners to the profit computed by the respondent is "no taxable profit." This we can not accept. Doubtless, conditions might exist in other cases, and evidence might be furnished of sales of stock, which might show that the fair market value of stock and the fair market value of the asset back of the stock were not identical, but we are without such evidence in this case. The Board is accordingly of the opinion that a determination of the fair market value of the stock on the basis of the fair market value of the assets back of stock is justified in this instance. This is in accord with prior holdings of this Board and finds support in cases adjudicated by*3899 the courts. William Ziegler, Jr.,1 B.T.A. 186">1 B.T.A. 186; Wallis Tractor Co.,3 B.T.A. 981">3 B.T.A. 981; Rose C. Pickering,5 B.T.A. 670">5 B.T.A. 670; Walter v. Duffy,287 Fed. 41; Phillips v. United States, 12 Fed.(2d) 598; In Re Dupignac's Estate,204 N.Y.S. 273">204 N.Y.S. 273; Heiner v. Crosby and Heiner v. Anderton, 24 Fed.(2d) 191. We fail to find anything in Bourn v. McLaughlin, 19 Fed.(2d) 148, on which much reliance was placed by the petitioners, which would lead us to reach a different conclusion. If for no other reason, this case can be distinguished from the case at bar by the express statement of the court that the stock could not have been disposed of "except at such a sacrifice as to amount to a virtual donation," and that attempts to sell the stock were unsuccessful. The case of Van Heusen v. Commissioner of Corporations and Taxation,154 N.E. 257">154 N.E. 257, which was likewise relied upon by the petitioner, can not be considered controlling for the reason that it arose under a State taxing statute, and involves the interpretation of a statute which*3900 differs materially from the Federal statute which governs our actions in the case under consideration.
The next question is whether the respondent was correct in applying section 331 of the Revenue Act of 1918 in determining the invested capital of the Orlando Petroleum Co. Five individuals and the Elmhurst Investment Co. owned undivided interests in certain oil leases and personal property appertaining thereto, which cost them $105,423.21. These assets had a value of $1,096,339.87 on April 15, 1919, when they were transferred to the Orlando *117 Petroleum Co., in exchange for its entire issue of capital stock, the owners receiving stock of the corporation in proportion to the interests which they had in the assets transferred.
We have heretofore held in this opinion that the foregoing transaction was an exchange which resulted in a taxable profit to the vendors. This petitioner contends that in case of such a holding, its invested capital should be determined under section 326 of the Revenue Act of 1918, and that there should be allowed in invested capital the cash value of assets at this time, or $1,096,339.87, rather than only $105,423.21 as allowed by the respondent. *3901 This argument overlooks the important consideration that the sections of the statute defining income are separate and distinct from those dealing with invested capital, and that from the fact that there is a realization of the appreciation in value of an asset which results in taxable income, it does not necessarily follow that the appreciated value of the asset may be allowed in the invested capital of the party to whom transferred. This is in accord with many decisions of the Board and was recently again stated in Farnsworth Pinney Co.,10 B.T.A. 1008">10 B.T.A. 1008. Section 331 of the Revenue Act of 1918 was enacted as a limitation on certain classes of transfers which took place after March 3, 1917 and provides as follows:
In the case of the reorganization, consolidation, or change of ownership of a trade or business, or change of ownership of property, after March 3, 1917, if an interest or control in such trade or business or property of 50 per centum or more remains in the same persons, or any of them, then no asset transferred or received from the previous owner shall, for the purpose of determining invested capital, be allowed a greater value than would have been allowed*3902 under this title in computing the invested capital of such previous owner if such asset had not been so transferred or received: Provided, That if such previous owner was not a corporation, then the value of any asset so transferred or received shall be taken at its cost of acquisition (at the date when acquired by such previous owner) with proper allowance for depreciation, impairment, betterment or development, but no addition to the original cost shall be made for any charge or expenditure deducted as expense or otherwise on or after March 1, 1913, in computing the net income of such previous owner for purposes of taxation.
Here there was clearly a "change of ownership of property," after March 3, 1917, in which "an interest or control in such * * * property of 50 per centum or more" remained in the same persons, and accordingly, the value allowable to the Orlando Petroleum Co. for invested capital purposes on account of the assets transferred to it on April 15, 1919, would be $105,423.21.
In making a recomputation of the deficiencies involved in these proceedings, effect should be given to certain errors on the part of the respondent on which the parties have reached*3903 an agreement and *118 which appear in our findings of fact as a part of the stipulation which was entered into.
The assignments of error contained in the petition of the Elmhurst Investment Co. with respect to invested capital, depreciation, and depletion having been denied by the respondent, and no evidence having been introduced in regard thereto, the respondent's action on these points is affirmed.
Judgment will be entered on 10 days' notice, under Rule 50.