*1062 1. In applying the limitation on stock losses provided for in section 23(r)(1), Revenue Act of 1932, in a case where husband and wife file a single joint return, it is held that the losses of one spouse who had no gain from the sale or exchange of similar securities may not be used to offset the gains of the other.
2. Petitioner Robert H. Montgomery, who had a hobby of trees, became convinced in 1930 that a profitable business could be operated in growing rare and unusual varieties of evergreens. He caused a corporation to be organized to engage in such a business and acquired all of its capital stock. The corporation immediately entered into the purchase and growing of such evergreens and the sale of them for a profit wherever it could. Held, petitioner's investment in the stock of the corporation was a transaction entered into for profit and petitioner is entitled to deduct his loss in 1933 when the stock of the corporation became worthless. Held, further, that certain bonds of the corporation purchased by petitioner and cash advances made by petitioner to the corporation were bona fide loans and petitioner is entitled to take as a deduction from his gross income*1063 in 1933 the remaining unpaid amounts due him after the complete liquidation of the corporation, as debts ascertained to be worthless and charged off in the taxable year.
3. Petitioner in 1932 acquired by gift from his wife a house previously occupied by them as their winter residence in Florida. He immediately offered it either for rent or sale. It remained vacant until 1935 when it was sold. Held, petitioner is not entitled to deduct depreciation and maintenance charges on the house during the taxable year 1933, as the house was not used in any trade or business then being carried on by petitioner.
*232 Petitiners pray for a redetermination of a $46,814.72 deficiency in income tax for the year 1933. Two of the five errors assigned are conceded by respondent. Effect thereto will be given in a recomputation under Rule 50. The issues remaining are whether the respondent erred (1) in disallowing losses of $104.44 on sales of stocks held by one petitioner for less than two years, notwithstanding in a joint return the other petitioner reported*1064 gains in excess of $104.44 on sales of stocks held by that petitioner for less than two years, (2) in disallowing a loss of $40,000 on worthless stock and a bad debt of $39,061.01, resulting from the liquidation in 1933 of the Montgomery Evergreen Nursery, Inc., and (3) in disallowing $3,909.59 as a deduction for maintenance and depreciation on property situated at Mountain Lake, Florida and advertising the property *233 for sale. Petitioner Robert H. Montgomery is for convenience sometimes hereafter referred to in this report as petitioner, whereas petitioner Lois C. Montgomery is referred to by name. The facts were presented at the hearing in the form of an agreed statement of facts and of a stipulation of certain evidence presented in a suit in the Court of Claims wherein Robert Montgomery is plaintiff and the United States is defendant, and of oral testimony, from which we make the following findings of fact.
FINDINGS OF FACT.
Petitioners are husband and wife. Petitioner has his principal office at 1 East 44th Street, New York, New York.
Issue (1). - During the calendar year 1933, for which petitioners filed a single joint income tax return, petitioner sustained*1065 losses of $104.44 from sales of stock of the kind defined in subsection (t) of section 23 of the Revenue Act of 1932, which stocks were held by him for less than two years. The losses were incurred in transactions entered into for profit, and were not compensated for by insurance or otherwise. During the same year petitioner Lois C. Montgomery realized gains in excess of $104.44 from sales of similar securities held by her for less than two years. The losses of $104.44 were deducted by petitioners in their joint return but were disallowed by the respondent in his determination of the deficiency.
Issue (2). - Petitioner has been successfully engaged in the practice of law and accounting for many years. He has specialized considerably in laws governing taxation. By 1930 he had accumulated several hundred thousand dollars worth of securities, and also an estate at Greenwich, Connecticut, worth approximately $100,000. Against these assets he owed certain liabilities, the amount of which is not disclosed.
One of petitioner's hobbies was the study of trees. For a number of years prior to 1930 he had been interested in the collection of rare varieties of evergreens. About*1066 the summer of 1930 he became convinced that there was a demand for such rare and unusual types of evergreens and that a profitable business could be developed along that line. He discussed the matter several times with the superintendant of his estate, who thought the probability of making a profit from the raising of rare conifers was good. In the summer of 1930 petitioner decided to engage in the nursery business and asked one of his associates to form a corporation for that purpose. Thereupon the Montgomery Evergreen Nursery, Inc., was organized on September 11, 1930, under the laws of the State of Connecticut.
The Montgomery Evergreen Nursery, Inc., frequently referred to herein as the corporation, had an authorized capital stock of 1,000 shares without par value, all of which, except 40 qualifying shares *234 was issued to petitioner in exchange for 800 shares of stock of the Ronald Press Co. which had a cost basis to petitioner of $40,000 and at that time had a fair market value of $52,000. The qualifying shares were in fact endorsed in blank and delivered to petitioner. By reason of certain transfers by gift of 575 shares of Montgomery Evergreen Nursery, Inc. *1067 , stock during September 1930 from petitioner to members of his family, and the later acquisition in 1933 by petitiioner of the 575 shares, partly by gift and partly by inheritance (all of the details of which are stipulated), petitioner's basis for determination of gain or loss in 1933 of the 1,000 shares of the corporation's stock was reduced to $38,000.
The charter of the corporation provided as follows with respect to the purposes for which it was formed:
(a) To purchase, acquire, hold, sell, exchange, raise, propagate, cultivate or otherwise deal with or dispose of plants, trees, shrubs, and other nursery products.
(b) To purchase or otherwise acquire, and to sell hypothecate, mortgage, lease, exchange, or otherwise dispose of real and personal property, of every kind and description and wheresoever situated.
(c) To carry on any similar business or operation deemed advantageous, which is incidental or accessory to any of the powers or purposes herein specified; and generally to do anything that a natural person might lawfully do or cause to be done in connection with any of the said things.
Petitioner's estate at Greenwich consisted of about ninety acres. three-fourths*1068 of which was in woodland. Approximately six acres of the cleared land were set aside for the use of the corporation as a nursery. There was no written agreement between petitioner and the corporation regarding that arrangement. These six acres were approximately three-quarters of a mile from petitioner's residence, and were entirely out of sight of the house. Another ten acres were also available for use by the corporation if they were needed.
At the time the corporation was organized neither petitioner nor his superintendent expected any immediate profits from the nursery, as they estimated it would take from two to three years to produce any saleable trees. Petitioner did expect that the nursery would be profitable after the necessary initial period. Petitioner knew that during this period of development the corporation would need funds. It was first proposed to borrow money from the banks, but this idea was abandoned and loans were made by petitioner instead.
On or about October 30, 1930, the corporation issued to petitioner $300,000 face value of its duly authorized income bonds for $300,000 in cash. At or about the same time petitioner sold to the corporation stocks*1069 and securities having a cost basis to petitioner of about $500,000 for $303,585, which latter amount represented the fair market value of such stocks and securities at that time. These securities were never reacquired by petitioner. Petitioner expected that there would be a *235 substantial increase in the value of these securities which would accrue to the corporation. One of the objects which peitioner had in mind when he organized the corporation was to make the sale of these securities to the corportion and realize a loss which he could take as a deduction in his income tax return for the year 1930. From time to time the corporation purchased some of its income bonds from petitioner at face value until on November 10, 1933, only $135,000 face value of its bonds were outstanding, all of which were still held by petitioner.
During the period from October 1, 1930, to November 10, 1933, inclusive, petitioner advanced $59,702.92 to the corporation, of which amount $30,144.56 was repaid prior to November 10, 1933, on which date the corporation remained indebted to petitioner for such advances in the amount of $29,558.36.
During the period from its organization to November 10, 1933, the*1070 corporation conducted a regular commercial nursery business. It acquired trees and shrubs at a total cost, including capitalized labor costs, of $38,797.15. Only such trees and shrubs were purchased as it was believed could be resold. An experienced propagator was employed to grow trees from seeds and cuttings. Before taking the position, the propagator, Dexter Davis, a student in the commercial nursery school of Cornell University, was assured that he was being employed by a commercial enterprise rather than by a private estate. On October 23, 1931, the corporation notified the United States Department of Agriculture that it was engaged in the nursery business and was "preparing to offer to other nurseries and to collectors the greatest variety of conifers of any nursery in this country." The purpose of this notification was to obtain persmission to import evergreens from abroad. Later the corporation did receive from the Department permits to import nursery stock "for commercial propagation." It also obtained nursery inspection and registration certificates from the State of Connecticut. It placed advertisements that it wished to purchase conifers in "Horticulture" and "Gardeners*1071 Chronicle of America." In "American Society of Landscape Architects" it advertised "Rare Conifers - For Collectors and For Special Effect - Over 300 Different Varieties in Stock - We Specialize in Unusual and Beautiful Coniferous Evergreens - Correspondence and Inspection Invited." One of the largest dealers in peat moss in the country gave the corporation the agency to sell peat moss in Greenwich and its vicinity. During this period the corporation accumulated over 16,000 trees, consisting of at least 500 different varieties.
In the fall of 1932 many customers inspected the nursery stock of the corporation and placed orders for spring delivery. In the spring of 1933 practically all of these orders were canceled, primarily because of the closing of the banks. The continuance of the depression *236 had a serious effect on the nursery business in general and more particularly the branch of it in which the corporation had embarked, which business did not improve in the fall of 1933. Petitioner became discouraged. The corporation had lost considerable amounts of money and on November 10, 1933, a special meeting of the board of directors was held, at which meeting petitioner*1072 submitted to the board a memorandum reviewing the history of the corporation, the last paragraph of which read in part as follows:
* * * I have decided in view of the foregoing that the best thing to do is to dissolve the Nursery Company. I will ask you to see to it that all the property of the company is sold at the best possible price. As to the Nursery stock it should be appraised at its market value at this time. I am willing to buy it personally and will pay more than anyone else will pay for it, but I of course do not wish to fix the price.
The special meeting closed with a resolution authorizing the dissolution of the corporation and the appointment of a special committee of two for the purpose of taking all necessary steps for the dissolution and liquidation of the corporation. On or about December 6, 1933, a certificate of dissolution was filed with the Secretary of State.
Between November 10, 1933, and the close of the year, the special committee sold to others than the petitioner all of the assets of the corporation, with the exception of the trees, shrubs, and equipment, for a total consideration of $115,477.20. The parties agree that the fair market value*1073 of the trees and shrubs on December 11, 1933, was $8,144.40, and that the fair market value of the equipment on that date was $1,875.75. The trees, shrubs, and equipment were transferred to petitioner on December 11, 1933, at which time his account on the corporation's books was debited with the amounts of $8,144.40 and $1,875.75, respectively. Of the $115,477.20 consideration received for all the other assets, $111,000 was paid to petitioner prior to December 31, 1933, in redemption of $111,000 of the corporation's income bonds and the balance of $4,477.20 was also paid to petitioner prior to December 31, 1933, and his account was debited with a like amount.
The transfers and payments to petitioner mentioned in the preceding paragraph left the corporation without any assets. Its capital stock was worthless and it still owed petitioner $24,000 ($135,000 minus $111,000) on its income bonds and $15,061.01 ($29,558.36 minus $8,144.40 minus $1,875.75 minus $4,477.20) for advances made by petitioner.
Prior to December 31, 1933, petitioner ascertained the balance of his income bonds in the face amount of $24,000 and the balance of his advances to the corporation in the amount of*1074 $15,061.01 to be worthless and charged them off his books. He deducted these two *237 amounts and his original investment of $40,000 in the capital stock of the corporation, or a total of $79,061.01, as a loss on the joint return for 1933. The Commissioner disallowed the deduction and in a statement attached to the deficiency notice explained the disallowance as follows:
This office has sustained the revenue agent in his disallowance of a loss of $79,061.01 claimed by Mr. Montgomery in connection with his investment in the Montgomery Evergreen Nursery, Inc., of Greenwich, Connecticut. No evidence has been filed which proves conclusively that this loss resulted from a transaction entered into for profit within the meaning of section 23(e) of the Revenue Act of 1932.
Subsequent to the dissolution of the corporation, petitioner sold some of the trees he received in the liquidation. He used 18 or 20 trees for landscape purposes on his estate. About 25 percent of the stock is still on hand. The remainder he gave away.
The organization and acquisition of the stock of the Montgomery Evergreen Nursery, Inc., was a transaction entered into for profit. The corporation during*1075 the years 1931, 1932, and 1933 operated a commercial nursery as a business, with the hope and intention of making a profit. The losses sustained by petitioner on the liquidation of the corporation were not compensated for by insurance or otherwise.
Issue (3). - During 1929 petitioner Lois C. Montgomery purchased, largely with her own funds and partly with funds of her husband, a piece of residential property located at Mountain Lake, Florida. It was occupied as a residence by petitioners until March 1, 1932. At that time petitioners moved to the Miami district and ceased to live at Mountain Lake. At the same time petitioner Lois C. Montgomery gave the Mountain Lake property, consisting of land, buildings, and furnishings, to her husband, referred to herein as petitioner. The latter immediately offered it either for rent or sale, which offers continued throughout the remainder of 1932 and all of 1933. One rental offer of about $500 was received but it was rejected by petitioner as he did not think it justified the opening and closing of the house. It was sold in 1935 for $12,000 and other considerations and all the proceeds were retained by petitioner. A reasonable allowance*1076 for the exhaustion, wear, and tear of the Mountain Lake property during 1933 was $2,750. During that year petitioner paid or incurred $741.72 for maintenance of the property and $417.87 for advertising. The total of these three amounts, $3,909.59, was deducted by petitioner from the gross income on the joint return, but was disallowed by respondent.
Petitioner Robert H. Montgomery, for the year 1933 and subsequent thereto, kept his books and prepared his income tax returns on the accrual basis.
*238 OPINION.
BLACK: At the hearing respondent conceded none of the issues raised by the pleadings and facts were proved at to all of them, but in his brief respondent concedes that petitioners are right as to two of the issues which petitioners have designated as issues (4) and (5). The facts as to these issues were stipulated and we have omitted any reference to them in our findings of fact. Effect will be given to the stipulation as to these two issues and the concessions of respondent in a recomputation under Rule 50. This leaves for our consideration issues (1), (2), and (3).
Issue (1). - This question is whether losses sustained by petitioner from sales of stocks*1077 held by him for less than two years may be offset against the gains of his wife from sales of similar noncapital assets in their joint return for 1933. The pertinent sections of the Revenue Act of 1932 are as follows:
SEC. 23. DEDUCTIONS FROM GROSS INCOME.
* * *
(r) LIMITATION ON STOCK LOSSES. -
(1) Losses from sales or exchanges of stocks and bonds (as defined in subsection (t) of this section) which are not capital assets (as defined in section 101) shall be allowed only to the extent of the gains from such sales or exchanges (including gains which may be derived by a taxpayer from the retirement of his own obligations).
SEC. 51. INDIVIDUAL RETURNS.
* * *
(b) HUSBAND AND WIFE. - If a husband and wife living together have an aggregate net income for the taxable year of $2,500 or over, or an aggregate gross income for such year of $5,000 or over -
(1) Each shall make such a return, or
(2) The income of each shall be included in a single joint return, in which case the tax shall be computed on the aggregate income.
During the taxable year 1933 petitioner sustained losses of $104.44 from sales of stocks of the kind defined in subsection (t) of section 23, *1078 supra. He had no gains from similar sales or exchanges. The stocks sold by him were not capital assets since they were held by him for less than two years. Sec. 101(c)(8), Revenue Act of 1932. During the same year petitioner Lois C. Montgomery realized gains in excess of $104.44 from sales of similar noncapital assets. She had no losses from similar sales or exchanges.
The respondent contends that the allowance of petitioner's losses of $104.44 is forbidden by section 23(r)(1), supra, since he had no gains from similar sales or exchanges. This is in accordance with his published ruling on the subject. See G.C.M. 15438, Cumulative Bulletin XIV-2, p. 156.
Petitioners contends that, since they filed a joint return in accordance with their rights under section 51(b)(2), supra, the limitation *239 on stock losses prescribed in section 23(r)(1) applies only if the combined losses of husband and wife are in excess of the combined gains. This precise question was involved in H. Denny Pierce,37 B.T.A. 225">37 B.T.A. 225, and was decided contrary to the contention made by petitioner. It is unnecessary for us to repeat here the reasons which we gave in support*1079 of that decision. For the details of our reasoning, see that report.
Following our decision in that case, we hold against petitioner on issue (1) and sustain the action of the Commissioner. Issue (2). - On the joint return filed for 1933 petitioner deducted $79,061.01 as a loss on the liquidation in 1933 of the Montgomery Evergreen Nursery, Inc. The respondent disallowed the deduction on the ground that no evidence had been submitted which proved conclusively that the claimed loss resulted from a transaction entered into for profit within the meaning of section 23(e) of the Revenue Act of 1932. Both the original and amended petitions alleged that respondent had erred in disallowing "a loss of $79,061.01, resulting from liquidation of the Montgomery Evergreen Nursery, Inc." The amended petition was later duly amended to assign as error that "The respondent erred in disallowing as a deduction from the petitioners' gross income for the taxable year 1933 a loss of $40,00 and a bad debt of $39,061.01 resulting from the liquidation of the Montgomery Evergreen Nursery, Inc." Petitioner now concedes that his proven basis of the 1,000 shares of Montgomery Evergreen Nursery, Inc. *1080 , owned by him at the time of dissolution in 1933 was $38,000 rather than $40,000. This conceded basis of $38,000 is not in question. In his brief the respondent contends that the alleged loans in the form of income bonds and advances by petitioner to the corporation resulting in the alleged bad debt of $39,061.01 were in fact not loans at all, but merely additional contributions to the corporation or investments in its stock; and that petitioner is entitled to no deduction whatever on account of the dissolution of the corporation for the reason that the claimed losses did not result from transactions entered into for profit, but were transactions entered into for the purpose of creating income tax losses and to satisfy petitioner's hobby for trees.
Section 23 of the Revenue Act of 1932 provides that in computing net income there shall be allowed as deductions:
(e) LOSSES BY INDIVIDUALS - Subject to the limitations provided in subsection (r) of this section, in the case of an individual, losses sustained during the taxable year and not compensated for by insurance or otherwise -
(1) if incurred in trade or business; or
(2) if incurred in any transaction entered into for profit, *1081 though not connected with the trade or business; or * * *
* * *
(j) BAD DEBTS. - Debts ascertained to be worthless and charged off within the taxable year * * *.
*240 Whether petitioner's investment in the capital stock of the Montgomery Evergreen Nursery, Inc., was a transaction entered into for profit is largely a question of ultimate fact to be found from an examination and consideration of all the evidentiary facts and circumstances. W. S. Farish,36 B.T.A. 1114">36 B.T.A. 1114. Both parties refer us to the case of Commissioner v. Field, 67 Fed.(2d) 876, 878, wherein the court said: "It is a matter of intention and good faith, and all the circumstances in the particular case must be our guide."
Aside from the stipulated facts the evidence offered by petitioner consisted of certain documents and the testimony of six witnesses, including petitioner. The respondent offered no evidence. The substance of the testimony of all the witnesses was that the nursery conducted by the corporation was strictly a commercial nursery, operated in an effort to make profit. It is true that the venture proved to be unprofitable, but we have no reason to disbelieve*1082 the testimony of petitioner that the bona fide purpose of petitioner in incorporating the Montgomery Evergreen Nursery was to establish an enterprise which would ultimately pay profits, especially when this testimony is reinforced by five other witnesses who testified to facts and circumstances which corroborate petitioner. We have therefore found as a fact that the organization and acquisition of the stock of the Montgomery Evergreen Nursery, Inc., was a transaction entered into for profit.
The corporation's charter, in addition to authorizing it to do a nursery business, also permitted it to purchase and sell personal property of every kind and description; to carry on any similar business or operation deemed advantageous, which is incidental or accessory to any of the powers or purposes therein specified; and generally to do anything that a natural person might lawfully do in connection therewith. It was under these broad powers that the corporation in 1930 duly issued $300,000 face value of its income bonds to petitioner for $300,000 in cash, and at about the same time purchased from petitioner stocks and securities having a cost basis to petitioner of about $500,000 for $303,585, *1083 which latter amount was the fair market value of the stocks and securities at that time. The respondent emphasizes these facts in his brief and contends that we must conclude therefrom that the primary purpose of organizing the corporation was to afford petitioner an entity to which he could, in form, transfer his depreciated stocks and securities without surrendering his economic interest in them and at the same time create for himself income tax losses of approximately $200,000 to which he would not otherwise be entitled. We do not have the question of the deductibility of these losses of approximately $200,000 in this proceeding. We express no opinion whatever as to the deductibility of such losses. Our question here is whether petitioner intended in *241 good faith to organize the corporation for profit and invested in its stock for that purpose. The respondent does not ocntend that the corporation should be disregarded and we see no reason for so doing. Nor does respondent claim that petitioner has not actually suffered the losses which he claims. At the hearing the presiding Member, at the close of petitioner's testimony, asked petitioner if one of the objects he*1084 had in organizing the corporation was to sell shares of stock to it and thereby realize a deductible loss for the year 1930, to which petitioner replied as follows:
I am trying to disconnect it from the nursery business, your Honor. I would say that was incidental because at that time as I recall it, the maximum tax rate was 25 per cent; that I was much more concerned in turning those securities in with the company, rather than sell them in the market and rebuy them, for I thought they would have an increase in value later on. When I made the sale to the corporation I have no doubt but what I did consider the question of deduction for the loss. I must have considered it. I am perfectly willing to assume that I did.
It seems reasonably clear from the testimony of petitioner just quoted and other testimony in the record that one of the purposes which the petitioner had in mind when he organized the corporation was to make sale to it of said securities, which had depreciated in value, and take the resulting loss as a deduction in his income tax return for 1930. We have therefore found as a fact that such was one of petitioner's objects in organizing the corporation. But it*1085 is equally clear that when petitioner organized the corporation and subscribed and paid for its capital stock, he intended that the corporation immediately establish a nursery to grow and sell conifers and make a profit therefrom. The corporation did establish and operate the nursery, but the expected profit never came. This is by no means an uncommon experience in the affairs of men. The casualties of business are fully as numerous as those which survive.
We therefore believe that the evidence offered by petitioner overcome the respondent's determination that petitioner's original investment in the corporation was not a transaction entered into for profit. This investment became worthless in 1933, when the corporation liquidated and was without assets. The loss was not compensated for by insurance or otherwise. We hold, therefore, that petitioner is entitled to a deduction in 1933 of $38,000, which represents petitioner's basis of the 1,000 shares of stock of the Montgomery Evergreen Nursery, Inc.
We also think petitioner is entitled to deduct $39,061.01 as a bad debt ascertained to be worthless and charged off within the taxable year. This amount is made up of the unredeemed*1086 income bonds of the corporation in the amount of $24,000 held by petitioner after the corporation was without assets and for which petitioner had paid *242 the corporation $24,000 in cash, and $15,061.01 representing advances made by petitioner to the corporation which remained unpaid after the corporation dissolved and was without assets. There is no evidence that these amounts were contributions made by petitioner to the corporation, as respondent now contends, or that they represented an additional investment in the capital stock of the corporation. Even if we should sustain respondent's contention and hold that they represented the latter, they would still be deductible as a part of petitioner's basis of that stock, for the reasons already given. Only in the event that we should hold that petitioner's investment in the stock of the corporation was not a transaction entered into for profit, would it make any difference in the ultimate result. We think however that the amounts represented bona fide loans by petitioner to the corporation; that they were made for business purposes and with the expectation of being repaid; and that when the corporation was dissolved and without*1087 assets, petitioner was justified in ascertaining them to be worthless and in charging them off his books. We hold that petitioner is entitled to the deduction for bad debts ascertained to be worthless and charged off in the taxable year, which he claims.
Issue (3). - The third issue is whether petitioner is entitled to deduct from gross income the depreciation sustained on the Mountain Lake property during the year 1933 and the expenses paid or incurred during that year in connection with the property for maintenance and advertising.
Section 23 of the Revenue Act of 1932 provides that in computing net income there shall be allowed as deductions:
(a) EXPENSES. - All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *.
* * *
(k) DEPRECIATION. - A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business * * *.
Section 24 of the Revenue Act of 1932 provides that in computing net income "no deduction shall in any case be allowed in respect of" personal, living, or family expenses.
It is respondent's contention that the use of the Mountain Lake property from*1088 the time it was acquired by petitioner Lois C. Montgomery, was for residential purposes; that it had never been rented up to the close of the taxable year and therefore petitioner is not entitled to take the deductions which he claims; that the expenditures involved were personal, living, or family expenses. Respondent in support of his contention cites Rumsey v. Commissioner, 82 Fed.(2d) 158, affirming memorandum decision of the Board, and Morgan v. Commissioner, 76 Fed.(2d) 390, affirming decision of the Board.
Petitioners contend that both of these cases are distinguishable on their facts. Petitioners point out in their brief that:
*243 * * * In both of these cases, the taxpayer owned property which he had acquired for residential and personal use. Thereafter the property was offered for rent or for sale and the taxpayers contended that offering the property for rent converted a residential property to business property. The Court in each instance held that the mere offering for rent is insufficient to effect an appropriation for business use. Regardless of whether these cases are sound, it is submitted that they have no*1089 application in the instant case. The petitioner, Robert H. Montgomery, had never owned the property in question as a residence, and therefore there is no question of converting it to a business one. When said petitioner acquired the property, he had no intention whatsoever of thereafter using it for personal or residential purposes. He acquired it for the sole purpose of either selling it for the best possible price or renting it. In the Morgan case the Court based its decision on the fact that there had been no "transaction" appropriating the property for business use. In the instant case, there was such a transaction, i.e., the acquisition of the property by the petitioner.
Petitioners further contend that this issue is controlled by our decision in Estate of Ellen C. Bonaparte,1 B.T.A. 1101">1 B.T.A. 1101. In that case the taxpayer acquired from the estate of her deceased husband certain property which had been used by the husband and his family as a residential property. She received the property free and clear and could do with it as she wished. A few weeks after receiving the property she offered it for sale and also for rent. After approximately one*1090 year and a half, during which time no one had been willing to rent the property and there had been no offer to buy at the appraised valuation, the taxpayer sold the property at a loss and claimed the loss on her income tax return. The Board held for the taxpayer, saying:
The record clearly shows that the taxpayer, from the time she received this property, planned to rent it, and planned to sell it, in order to produce gains if possible, and finally did dispose of it, receiving about $41,000 therefor. The record convinces us that the transaction described was in every respect a transaction entered into for profit and that it comes clearly within the meaning of provisions of law, and that the immediate loss arising out of this transaction is such a loss as the law contemplated should be deducted from a gross income during the year in which it was sustained.
It should be pointed out however that the question involved in the Bonaparte case was the deductibility of a loss on a sale of property once used for residential purposes and the decision of that issue depended upon whether or not the transaction was entered into for profit. We held, under the facts, that it was. Here*1091 the issue is not one of the deductibility of a loss incurred in a sale of property acquired in a transaction entered into for profit, but whether or not the depreciation which was incurred in the taxable year was depreciation of property used in petitioner's trade or business and whether or not the expenses incurred in the care and maintenance of the property and advertising it for rent or for sale were ordinary and *244 necessary expenses paid or incurred during the taxable year in carrying on any trade or business. If petitioner had proved he had actually rented the premises during 1933, perhaps he would be entitled to a part or all of the deductions which he claims. Thus the Treasury has held that a taxpayer is entitled to deduct a proportionate part of the depreciation if he rents a portion of his personal residence to other individuals, Bureau Bulletin "F", January 1931, and that a proportionate part of the depreciation must be taken into consideration when a taxpayer owning a two-family house occupies one floor as his residence and rents the other. O.D. 1026, *1092 5 C.B. 51. But in the instant case the petitioner did not rent the property during the taxable year. He only tried, without success, to rent or sell it.
In the Rumsey case the court said:
If an owner rents, his decision is irrevocable, at least for the term of the lease; and if he remodels to fit the building for business purposes, he has likewise made it impossible to resume residential uses by a mere change of mind. When, however, he only instructs an agent to sell or rent the property, its change of character remains subject to his unfettered will; he may revoke the agency at any moment.
We do not think that it can be said under these circumstances that the depreciation which the petitioner suffered on the property in question was incurred with reference to property used in his trade or business nor do we think that the expenses of maintenance of the property and the expenses of advertising it for rent or sale can be said to be "ordinary and necessary expenses paid or incurred during the taxable year in carrying on a trade or business." We think these expenses, under the facts shown, must be held to be personal, living, or family expenses and are not deductible.
*1093 On issue (3) we sustain respondent.
Reviewed by the Board.
Decision will be entered under, Rule 50.