*808 An agreement whereby an individual promised and agreed to make future payments to the petitioner during the petitioner's life, made in consideration of the transfer by the petitioner to such individual of certain shares of stock, had no fair market value when received by the petitioner, and, as the cash payments received during the year in which the agreement was made did not exceed the basis of the stock, the petitioner realized no taxable gain from the transaction in that year.
*903 The Commissioner determined a deficiency of $101,964.70 in the petitioner's income tax for 1930. The petitioner assigns as error the action of the Commissioner in determining a profit of $813,824.24 from a transaction whereby the petitioner transferred 2,499 shares of stock of Harold Lloyd Corporation to Harold C. Lloyd in consideration of the promise of the latter to pay the petitioner an annual income for life.
FINDINGS OF FACT.
The petitioner is an individual who filed his income tax return for the calendar*809 year 1930 with the collector of internal revenue for the sixth district of California. He is the father of Harold C. Lloyd, the famous comedian.
The petitioner owned 2,499 shares of stock in the Harold Lloyd Corporation on April 16, 1930. The basis for gain or loss on these shares in his hands on April 16, 1930, was $122,567.68, their cost in 1922.
He transferred the 2,499 shares of Harold Lloyd Corporation stock to Harold C. Lloyd on April 16, 1930, pursuant to a written contract dated April 16, 1930, between Harold C. Lloyd and the petitioner.
The contract provided that Harold C. Lloyd should pay to the petitioner, in consideration of the transfer of the shares, the sum of $100,000 per year, commencing on the first day of May 1930, the payments to be made quarterly in the sum of $25,000 on the first day of the calendar months May, August, November, and February so long as both parties should live, and, in the event Harold should predecease the father, Harold's estate should pay the petitioner, during the remaining period of the petitioner's natural life, $50,000 per year, payable quarterly in equal amounts on the first day of May, *904 August, November, and February. *810 All payments were to cease with the last quarterly payment which should fall due preceding the death of the petitioner.
The petitioner received payments of $75,000 during 1930 under the contract. He filed his income tax returns and kept his books on the basis of cash receipts and disbursements. He did not report any profit from the transaction in his return for 1930 for the reason, as stated in the return, that the amount received did not equal the cost of the stock sold.
The Commissioner held that the petitioner received, under the agreement of April 16, 1930, an annuity of the value of $850,434 and realized a profit of $813,825.24 from the disposition of his stock of Harold Lloyd Corporation. The Commissioner treated this profit as capital net gain in determining the deficiency.
The promise and agreement of Harold C. Lloyd to pay the petitioner the amounts above mentioned in consideration of the transfer of the 2,499 shares of stock, which agreement was evidence by the contract of April 16, 1930, had no fair market value on April 16, 1930.
OPINION.
MURDOCK: The petitioner completely disposed of 2,499 shares of Harold Lloyd Corporation stock in 1930. The question*811 is whether he realized from the transaction any gain taxable in 1930. Section 111 of the Revenue Act of 1928 provides that the gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the basis. The basis here has been stipulated. The amount realized is defined in section 111(c) as "the sum of any money received plus the fair market value of the property (other than money) received." The petitioner received no money on April 16, 1930, when he parted with his stock. He received $75,000 in cash later in 1930 under the agreement. Unless the amount realized included property (other than money) having a fair market value, there was no taxable gain for 1930 from the transaction, since the cash did not equal the basis of $122,567.68. The petitioner received the promise of his son, Harold, expressed in the contract, to make certain annual payments of money in the future. Did that represent property having a fair market value within the meaning of section 111(c)?
The petitioner did not give his stock to his son. The transfer was supported by a valuable consideration, the promise and agreement to make payments in the future. *812 We are not called upon to determine the cost of the stock to Harold but rather to determine whether the petitioner received any property having a fair market value on April 16, 1930, upon which an immediately taxable gain should be *905 computed. Sometimes it is necessary to determine a value for a certain tax purpose but not for another, and sometimes the two sides of a transaction do not receive parallel tax treatment. , and the same case affirmed by the Supreme Court, ; ; affd., ; certiorari denied, . Cf. ; ; ; ; . Where marketable exchangeable promises to pay are accepted as a part of a purchase price, their fair market value is included in the "amount realized" and a taxable gain is realized immediately. *813 Cf. ; affd., ; and . But promises to make future payments do not always have an exchangeable value () and are not always income when received. ; . In such cases the actual payments as made are taxed as income when received in excess of the basis. The petitioner reported his profit in that way.
The fair cost of an annuity based upon experience tables giving life expectancies can be determined by actuaries. A similar method would have to be used in order to estimate the present value of an annuity to the annuitant. But here a new element enters the computation, the uncertainty as to whether or not the one agreeing to make payments will be able to make them as agreed when the time for payment actually arrives. This difficulty might not be so great in the case of a sound insurance company regularly engaged in granting annuities or, perhaps, in the case of a bank. Cf. *814 . Laws have been enacted to safeguard investors of such institutions. But that kind of an annuity is not involved in this case. Harold C. Lloyd was an individual. He was wealthy in 1930 but he was not engaged in the business of granting annuities, and his investments were not subject to restrictions and supervision as are those of insurance companies and banks. The evidence shows that the contract of April 16, 1930, whereby Harold C. Lloyd promised and agreed to make future payments to his father, the petitioner, had no fair market value within the meaning of section 111(c) when received by the petitioner on April 16, 1930. Cf. , reversing ; . The Commissioner erred in including any gain from the transaction in the petitioner's income for 1930.
Decision will be entered under Rule 50.