*1799 Cost to the petitioner of an option to purchase lands, acquired by petitioner in exchange for its capital stock, determined.
*714 Respondent has determined a deficiency in income tax for the years 1923 and 1924 in the respective amounts of $7,892.01 and $586.52. It is alleged that respondent erroneously reduced the cost of lots sold by petitioner by the sum of $60,000. The sole question involved is the cost to petitioner of an option for which it issued its capital stock.
FINDINGS OF FACT.
Petitioner was incorporated under the laws of California in September, 1920, and was and is engaged in the business of buying and selling real property.
Under date of December 12, 1919, the Naples Extension Co. granted to S. A. Selover an option to purchase within ninety days from said date lots 2 to 9, inclusive, of tract No. 685 as per a certain map recorded in a map book of Los Angeles County, California, containing in all 237.78 acres, more or less, for the sum of $237,780, payable $60,000 cash upon delivery of the*1800 deed and the balance in three equal installments payable in 1, 2 and 3 years after date and secured by a mortgage on the property. The option contained provisions as to subdivision by the grantees and as to the release of the lien on lots sold.
This option was renewed by the following instruments:
In consideration of the sum of $1.00 to the Naples Extension Company in hand paid by S. A. Selover, and other valuable considerations, including the efforts of S. A. Selover to organize a syndicate or corporation to purchase, or otherwise obtain a purchaser for, the properties hereinafter mentioned, the Naples Extension Company, a California corporation, hereby extends for a period of ninety days from the expiration of the period mentioned in an option dated the 12th day of December, 1919, the option to purchase Lots 2, 3, 4, 5, 6, 7, 8 and 9 of Tract No. 685, subject, however, to all the remaining terms and conditions of said option, save and except that at his option the said S. A. Selover may exercise within the period of this extension an option to purchase as a separate parcel Lots 6, 8, and 9 of said Tract No. 685, amounting to 117.33 acres more or less, for $117,330.00, without*1801 purchasing the balance of *715 the property included therein, such purchase price to be paid as per the terms specified in said agreement of December 12th, 1919, purchase price to be payable one-fourth cash and the balance in three equal deferred payments as in said agreement specified.
(Signatures)
The foregoing extension is hereby extended for an additional period of ninety days from the expiration of the period of the above extension.
Dated April 29th, 1920.
(Signatures)
(Option to Sept. 12, 1920.)
IN CONSIDERATION of One ($1.00) Dollar to the NAPLES EXTENSION COMPANY in hand paid by S. A. Selover, and in consideration of his agreement, in event the extension of the option herein given is exercised within the period of such extension, to pay interest at the rate of six per cent per annum, payable semiannually from the 13th day of September, 1920, on the purchase price of the hereinafter mentioned portion of the property involved therein, the option dated the 12th day of December, 1919, as modified by an extension thereof given on the 29th day of April, 1920, and in so far as it applies to that portion of the property described in such option as Lots Six (6), *1802 Eight (8), and Nine (9), of said Tract No. 685, is extended to and including the 12th day of November, 1920, subject, however, to all of the remaining terms and conditions of said option, so that the said S. A. Selover may exercise within the period of this extension and option to purchase said Lots Six (6), Eight (8), and Nine (9), of said Tract No. 685, amounting to 117.33 acres, more or less, for the sum of $1,000.00 per acre, such purchase price to be otherwise as per the terms specified in said agreement of December 12th, 1919.
(Signatures)
Neither the original option nor any renewal cost Selover anything of value.
The incorporators of petitioners were five persons other than Selover and his associates. These five persons elected themselves directors and held their first directors' meeting on November 5, 1920. Among the resolutions adopted at that meeting were the following:
WHEREAS this corporation was incorporated for the special purpose of acquiring Lots Six (6) Eight (8) and Nine (9) of Tract No. 685, Los Angeles County Records, amounting to 117.33 acres, more or less, by acquiring an option to purchase the said property held by S. A. Selover, which option runs*1803 to the 12th day of November, 1920, inclusive, and thereafter platting, subdividing, improving and selling said portion of said tract; and
WHEREAS it has been understood that the said 117.33 acres is to be acquired by this corporation for a cost to it, including the profit of primary organizers, of $1,050.00 per acre, plus $60,000 par value of stock in this corporation to be issued to S. A. Selover and his nominees, (said profit of said organizers consisting partly of a commission paid by the Naples Extension Company and partly of an addition to the option price of five (5%) per cent of the amount thereof, plus $60,000 par value of the stock of this corporation), such purchase price to the Naples Extension Company being payable one-fourth (1/4) in cash and the remaining three-fourths (3/4) in deferred payments as provided for in said option, with interest on said down payment and deferred payments at six (6%) *716 per cent per annum from the 13th day of September, 1920, said deferred payments to be represented by note of and secured by mortgage of this company upon said property; and
WHEREAS in the judgment of the Board of Directors of this corporation the gross price of*1804 said tract, to-wit: a price of $1,050.00 per acre, plus $60,000 par value of stock in this corporation, is fair and reasonable and the value of said property is equal to the aggregate of the mortgage to be assumed and the cash and stock to be paid and issued in payment therefor to said Naples Extension Company, and to said S. A. Selover and his nominees; and
WHEREAS in the judgment of the Board of Directors said property is necessary to enable the company to properly conduct its affairs,
NOW, THEREFORE, BE IT RESOLVED: That this company purchase Lots Six (6), Eight (8) and Nine (9), Tract 685, as per map thereof recorded in Book 20 of Maps, Pages 116 and 167, Records in the office of the County Recorder of Los Angeles County, State of California, containing 117.33 acres more or less and that as a part of the purchase price thereof this company execute and deliver to the Naples Extension Company its three notes for Twenty-nine Thousand and Three Hundred Sixty and 00/100 ($29,360.00) Dollars each, dated November 10th, 1920, payable on or before one, two, and three years respectively, with interest from September 13th, 1920, at 6% per annum payable semi-annually from date of making*1805 mortgage, being a total aggregate of Eighty-eight Thousand Eighty and no/100 (88,080.00) Dollars, said notes to be secured by a first mortgage upon said property dated November 10th, 1920, and that a separate release agreement to be executed in connection therewith providing for partial releases, the total of the amounts mentioned in which release agreement shall approximate One Hundred Forty Thousand and 00/100 ($140,000.00) Dollars and that the president and the secretary of this corporation be, and they are hereby authorized to execute said release agreement and said notes and mortgages in the total sum of Eighty-eight Thousand eighty ($88,080.00) Dollars for and on behalf of the corporation and as its act and deed, containing such other terms and expressed in such language as said president and secretary deem proper; and
IT IS FURTHER RESOLVED that the said sum of $5,756.50 be paid to said S. A. Selover or his nominees and said $60,000 par value of stock be issued to said S. A. Selover or his nominees, such stock to include the stock subscribed for by the original subscribers to the capital stock of this corporation or their successors in interest.
The said five persons then*1806 surrendered their stock and resigned as directors and officers. The property mentioned in the last option was acquired in the manner and for the consideration set forth in the above resolution of the board of directors.
Under date of January 28, 1921, the Commissioner of Corporations of the State of California issued a permit to petitioner to issue to Selover and his nominees the 600 shares of stock above referred to and to sell to its incorporators not exceeding 400 shares of its stock at par for cash. The permit was on condition that the 600 shares issued to Selover should be deposited in escrow and should not be sold or transferred until the consent of the commissioner had been obtained and contained the further statement that it did not constitute a recommendation or endorsement of the securities. At a *717 time not shown the 600 shares were withdrawn with the consent of the commissioner from the depository.
The tracts of land mentioned in the option were parts of large tracts which belonged to certain corporations controlled and largely owned by Henry E. Huntington, a wealthy resident of Los Angeles, and lay on and back from the Pacific Ocean, and were partly within*1807 and partly without the corporate boundaries of the city of Long Beach. In and prior to the year 1919 these tracts were swamp lands, but were very valuable for residential purposes if filled in, an expensive operation. The Huntington interests were desirous of disposing of these old holdings for a reasonable price rather than going to the expense of developing them. In 1919 a corporation which Selover and his associates controlled purchased a tract of slightly less than 100 acres which lay between the land subsequently acquired by petitioner and the ocean. Through such tract of 100 acres and just south of the land subsequently acquired by petitioner ran an old canal about 4,400 feet long, 80 feet wide, and from 15 to 20 feet deep. During 1920 the 100 acres were in process of improvement, the canal had been filled in, other filling was being done, and streets were constructed and opened. On this work between $175,000 and $200,000 had been expended, which was about one-fourth of the total amount eventually expended in the work. At the time petitioner acquired the option 68 per cent of the lots had been sold at a total price of about $800,000. Before the date petitioner acquired*1808 the land above referred to its access to the sea had been accomplished, the value of the property under option had enhanced, and a market for it had been established by the operations on the 100-acre tract. The option acquired by petitioner had at the date of acquisition a fair market value of $60,000, and petitioner's capital stock had a value of $100 per share. Some of the property so acquired was sold by petitioner during the taxable year. In computing the gain therefrom the Commissioner used as a basis a cost for said tract of $1,050 per acre.
OPINION.
PHILLIPS: Under the circumstances of this case the cost to petitioner of the land acquired in 1920 is the amount of the cash paid plus the value of the option. The issue of fact for decision is the value of the option at the time acquired by petitioner. The testimony of four men, qualified to express an opinion upon this value, placed it at $60,000 or more. There is no testimony to contradict and much to support this value. Stress has been laid by counsel for the respondent upon the act of the owner of the property in granting extensions of the option without any cash payments. It would seem, *718 however, that*1809 the owner had much to gain from the successful development by Selover and his associates of the property lying next to the ocean; that the proper course was to encourage that development; and that extensions of the option were nothing more than good business.
Furthermore, there is testimony that before Selover and his associates started development work on the first tract, there was a gentleman's agreement with the Huntington interests that the lands here in question and others might be acquired at a fixed price. The option and extensions were given in pursuance of this understanding. The circumstances bear out the opinion testimony. The cost of the property should be recomputed accordingly.
Decision will be entered under Rule 50.