1943 U.S. Tax Ct. LEXIS 90">*90 Decision will be entered under Rule 50.
Petitioner purchased, for less than face value, and turned in at face value, as payment of its mortgage indebtedness, certain mortgage certificates issued by the trustee under the mortgage. The petitioner was not insolvent. Though under the agreement between petitioner and the trustee the certificates could be used at face value to discharge principal indebtedness, the record does not show the value of the property at time of acquisition, nor its cost to petitioner. Held, that the petitioner realized income to the extent of the difference between cost and face value of the certificates. United States v. Kirby Lumber Co., 284 U.S. 1">284 U.S. 1, applied.
2 T.C. 516">*516 This proceeding involves the redetermination of the following deficiencies in income tax:
| 1935 | $ 1,105.92 |
| 1936 | 2,669.40 |
| 1937 | 2,815.99 |
The issue is whether the petitioner realized income in the amounts by which the face value of certain mortgage certificates issued by the petitioner's mortgagee exceed the prices at which the1943 U.S. Tax Ct. LEXIS 90">*91 petitioner purchased them, the mortgagee having accepted the certificates at face value in reduction of the petitioner's indebtedness.
FINDINGS OF FACT.
The petitioner is a New York corporation, organized in February 1921 and having its principal office at 11 West 42d Street in New York City. Its returns for the taxable years were filed with the collector for the third district of New York.
Since February 1921, and during the taxable years, the petitioner's business was the ownership and operation of a building known as 80 Fifth Avenue, New York City, which is its principal asset. The building 2 T.C. 516">*517 was erected in 1909. It stands on a lot having a frontage of about 73 feet on the westerly side of Fifth Avenue and 107 feet on the southerly side of Fourteenth Street. It is of brick and steel fireproof construction and consists of 16 stories and a penthouse, having stores on the ground floor, and lofts above.
Under date of June 1, 1925, the petitioner and the New York Trust Co. entered into an agreement, one of the purposes of which was to consolidate into one obligation and lien the aggregate principal amount of $ 1,000,000 then owing by the petitioner1943 U.S. Tax Ct. LEXIS 90">*92 to the trust company on two bonds secured by mortgages on the petitioner's real estate. The agreement authorized the trust company to issue certificates in denominations of $ 1,000, $ 500, and $ 100, representing pro rata shares or parts of the bonds and mortgages and of the agreement, the aggregate principal amount of certificates outstanding at any one time not to exceed $ 1,000,000. The certificates were executed by the trust company only, and not by the petitioner. They provided that the bonds and mortgages were held for the benefit of the certificate holders; that the shares represented by the certificates were payable only out of moneys received by the trust company from the petitioner, beyond which the trust company undertook no responsibility. Provision was made for the reimbursement of certificate holders by the petitioner for certain Federal and state income and other taxes imposed on account of the ownership of the certificates. The due date of the petitioner's indebtedness and of the certificates was set at June 1, 1940. The petitioner agreed to make payments aggregating $ 85,000 a year to the trust company, to be applied first to the interest on the bonds and the1943 U.S. Tax Ct. LEXIS 90">*93 balance to the reduction of the principal indebtedness, through the purchase or redemption and retirement by the trust company of certificates, in the manner provided in the agreement. It was further agreed that so much of any payment as should not be needed on account of interest might be satisfied by the delivery to the trust company of certificates issued under the agreement, with all unmatured interest warrants attached, which certificates the trust company agreed to accept at their face value in pro tanto discharge of the principal indebtedness. Certificates so applied in reduction of the principal indebtness could not be reissued. Other pertinent provisions gave the petitioner an option to redeem certificates on any interest payment date upon payment of a prescribed premium after giving certain notice to the holders, permitted the trust company to declare the whole debt due upon petitioner's default in payment of principal or interest or upon breach of certain of its covenants, and entitled the trust company to reasonable compensation for its services rendered under or in connection with the agreement, to be paid by the petitioner.
2 T.C. 516">*518 During the taxable years the1943 U.S. Tax Ct. LEXIS 90">*94 petitioner purchased certificates of the aggregate face values and at costs as follows:
| Year | Face value | Cost |
| 1935 | $ 17,200 | $ 8,914.71 |
| 1936 | 62,000 | 44,267.78 |
| 1937 | 113,900 | 94,588.00 |
Of the amounts so purchased, the petitioner actually surrendered to the trust company in each year certificates having face values and costs to petitioner as follows:
| Excess of | |||
| Year | Face value | Cost | face value |
| over cost | |||
| 1935 | $ 16,600.00 | $ 8,584.71 | $ 8,015.29 |
| 1936 | 62,600.00 | 44,597.78 | 18,002.22 |
| 1937 | 113,900.00 | 94,588.00 | 19,312.00 |
The trust company accepted the certificates at their face value in curtailment of the principal mortgage debt. No part of the debt reductions thus effected was reported on the petitioner's returns for the taxable years as resulting in the realization of income.
The petitioner's balance sheets, as reflected on its books and reported on its returns, were as follows:
| Jan. 1, 1935 | Dec. 31, 1935 | Dec. 31, 1936 | Dec. 31, 1937 | |
| ASSETS | ||||
| Cash | $ 14,728.55 | $ 14,804.28 | $ 8,442.31 | $ 3,885.16 |
| Accounts receivable | 562.51 | 2,553.68 | 733.34 | 586.67 |
| Bonds of domestic | ||||
| corporations | 3,525.00 | 2,527.50 | ||
| Deferred charges: | ||||
| Prepaid insurance, | ||||
| taxes, etc | 1,156.76 | 606.61 | 7,803.43 | 9,853.90 |
| Building (after | ||||
| depreciation) | 629,464.22 | 602,678.50 | 575,892.78 | 549,107.06 |
| Land | 675,000.00 | 675,000.00 | 675,000.00 | 675,000.00 |
| Unamortized discount | 27,500.00 | 22,500.00 | 17,500.00 | |
| Total | 1,351,937.04 | 1,320,670.57 | 1,285,371.86 | 1,238,432.79 |
| LIABILITIES | ||||
| Accounts payable | 4,164.60 | 11,000.00 | ||
| Bonds, notes, mortgages | ||||
| (less than one year) | 15,000.00 | 5,980.00 | ||
| Mortgages | 740,000.00 | 714,900.00 | 648,300.00 | 640,000.00 |
| Accrued expenses | 13,668.08 | 12,747.79 | 14,899.01 | 7,447.45 |
| Security deposits | 5,916.66 | 6,916.66 | 7,250.00 | 7,250.00 |
| Rents paid in advance | 183.33 | 225.00 | 125.00 | |
| Capital stock | 15,000.00 | 15,000.00 | 15,000.00 | 15,000.00 |
| Surplus | 573,187.70 | 570,922.79 | 573,697.85 | 562,630.34 |
| Total | 1,351,937.04 | 1,320,670.57 | 1,285,371.86 | 1,238,432.79 |
1943 U.S. Tax Ct. LEXIS 90">*95 The book value of the petitioner's building, if the reserve for depreciation be restored, is $ 1,000,000. The land is carried at $ 675,000. The fixed asset value of $ 1,675,000 thus reflected includes a book write-up or appreciation of some $ 783,000 made in 1926 in petitioner's property account.
2 T.C. 516">*519 During the taxable years the petitioner made payments of cash dividends in the amounts of $ 12,000 in 1935, $ 21,000 in 1936, and $ 30,000 in 1937. It reported net income (or loss) on its returns in the amounts of $ 10,317.81 (loss) for 1935, and $ 4,292.87 for 1936, and $ 1,361.02 for 1937. The net profit or loss on the operation of its building as shown on its profit and loss statements for 1935 and 1936 was in the same amount as the income or loss shown on the returns for those years. The statement for 1937 showed profit of $ 4,793.73.
In 1937 the petitioner obtained a loan of $ 600,000, secured by a first mortgage on its real estate from the Aetna Life Insurance Co. Before granting the loan the company caused a physical inspection of the property to be made by members of its mortgage department, had an independent appraisal made by a firm of real estate appraisers in New1943 U.S. Tax Ct. LEXIS 90">*96 York, and examined statements of earnings submitted by the petitioner. It required also the assignment of four of the major leases held by the petitioner as collateral security for the debt. The loan was granted for a 10-year period, but was prepaid by the petitioner in 1942.
During the taxable years the fair market value of the property known as 80 Fifth Avenue was not less than $ 800,000. The petitioner was not insolvent during the taxable years.
OPINION.
The issue here presented is whether or not the petitioner realized income through reductions of its mortgage indebtedness, the petitioner having purchased mortgage certificates at less than face value and the mortgagee having accepted them at face value in reduction of the debt. The respondent's position is that, under the rule of , the amounts by which face value exceeded petitioner's cost constitute income taxable to the petitioner. The petitioner makes the following contentions: first, that the principle of the Kirby Lumber Co. case has no application because the petitioner was insolvent at all times during the taxable years; second, that1943 U.S. Tax Ct. LEXIS 90">*97 regardless of the question of solvency there will be no gain or loss realized until the petitioner makes final disposition of its property; and, third, that the satisfaction pro tanto of the mortgage debt by surrender of the mortgage certificates constituted payment in accordance with an alternative method provided for by the contract and hence the obligation was settled in full and not for less than its face amount. We shall discuss the questions thus raised in the order stated.
We have found as a fact that the petitioner was not insolvent during the taxable years. Its property account after depreciation deductions was at all times in excess of $ 1,220,000, and its book net worth was 2 T.C. 516">*520 in excess of $ 595,000. Even if the asset items of unamortized discount and those of prepaid expense be eliminated as bookkeeping rather than real assets, net worth of more than $ 560,000 would still be reflected. We think the evidence fails to show an overstatement in property account of that amount. Upon brief, the petitioner states that in order for it to have been solvent the value of its property would have to have been as much as $ 746,333.28 on December 31, 1934, $ 717,362.321943 U.S. Tax Ct. LEXIS 90">*98 on December 31, 1935, $ 689,998.36 on December 31, 1936, and $ 658,830.82 on December 31, 1937. In our opinion it has not been shown to have been less than those amounts. After careful consideration of all the evidence, including the opinions of the expert witnesses of both parties, and meaning by fair market value the price at which a willing buyer and a willing seller would meet, we think that the land and building together had a fair market value of at least $ 800,000. It follows and we hold that the petitioner was solvent during all of the taxable years.
The petitioner's first alternative contention is that no taxable gain or loss will be realized in connection with the transactions under consideration until it sells or otherwise disposes of its property. In support of that position we are referred to the cases of ; ; affd., ; and . The first two of those cases hold that the satisfaction of an indebtedness incurred for the purchase1943 U.S. Tax Ct. LEXIS 90">*99 price of property for less than its face amount, the value of property meanwhile having fallen to an amount not in excess of the unpaid balance of the debt, does not result in income to the debtor. The theory upon which that principle rests is that under such circumstances "the cancellation may be regarded as no more than a retrospective readjustment of the purchase price." . Clearly, the cases have no application here. The petitioner's property was acquired in February 1921, and one of the mortgages covered by the 1925 consolidation agreement was dated February 28, 1921. Even if it may be inferred from those circumstances that that mortgage was made in connection with the acquisition of the property and was given to secure a part of the purchase price, there is nothing in the record to disclose the amount of the unpaid balance during the taxable years. It appears from a recital in the 1925 agreement that there then remained unpaid a balance of $ 552,000. The value of the petitioner's property was substantially in excess of $ 552,000 at all times during the taxable years. One of the factors requisite to 1943 U.S. Tax Ct. LEXIS 90">*100 an application of the doctrine of the Hirsch and Killiam cases is the depreciation in value of the property to a point where it does not exceed the unpaid balance of the purchase price. Thus, even if the 1921 mortgage were not further reduced after June 1, 1925, that requisite factor is not present here. Nor does the 2 T.C. 516">*521 Pinkney Packing Co. case support the petitioner. In substance, the holding in that case was that the acceptance by the vendor of property of a cash price lower than the credit price which the purchaser had contracted to pay did not result in income to the purchaser, since the acceptance of the lower amount in cash was in accordance with an agreement made at the time of sale. No such circumstances are present here.
The petitioner contends, further, that there was no cancellation of its indebtedness in the taxable years, since the 1925 consolidation agreement expressly provided that mortgage certificates would be accepted by the trust company at face value in satisfaction of the principal debt. The argument is that two alternative methods of meeting the obligation were thereby provided, namely, the payment of money or the delivery of certificates, 1943 U.S. Tax Ct. LEXIS 90">*101 that in employing the latter method the petitioner has satisfied its liability exactly in accordance with the terms of its contract, and hence that gain may not be said to have been realized. , and , are cited in support of this point. In the first of those cases the vendor of property agreed to accept, in payment of a purchase money note and mortgage made by the purchaser, certain mortgage certificates issued by the vendor. Subsequently and in the taxable year the purchaser acquired certificates having a face value of some $ 71,000 at a cost of about $ 37,000. The certificates were transferred to the vendor and were accepted by it at face value in payment of the note and mortgage. At the time of the sale the value of the property did not exceed the total cost for which the purchaser ultimately satisfied its obligation to pay the purchase price. We said that the alternative method of payment provided in the original obligation was a factor differentiating the case from , and .1943 U.S. Tax Ct. LEXIS 90">*102 We did not, however, hold that the payment of an obligation in accordance with the terms of an alternative method can never result in gain. On the contrary, we expressly recognized that if the transaction were viewed as an exchange of property -- the mortgage certificates for the real estate -- taxable gain would have resulted, but for the fact that the value of the real estate did not exceed the cost of the property for which it had been exchanged. In the instant case too, there existed an alternative method of payment of the petitioner's principal obligation, but beyond that feature the situation does not resemble that involved in the Cherokee case. There is here no basis for considering the transaction as an exchange of property, and, if there were, it could not be said that the petitioner realized no gain, since neither the value of the real estate at the time of its acquisition nor its cost to the petitioner has been shown. Even if it be assumed 2 T.C. 516">*522 that the petitioner originally acquired its property from the mortgagee, the trust company, it was not until more than four years subsequent to that time that the alternative method of payment was created, and then only1943 U.S. Tax Ct. LEXIS 90">*103 in connection with the consolidation of the earlier mortgage with a later one. The principle of the Cherokee case is of no aid to the petitioner.
In , the petitioner acquired a lessee's interest in certain leaseholds, procuring the discharge of the lessee's bonds secured by mortgage on the leaseholds by the issuance of its own debentures and stock having a value lower than the face amount of the bonds discharged. We held that the petitioner had not assumed payment of the bonds, and hence that it had not discharged an obligation for less than its face amount. No question of satisfaction of an indebtedness by an alternative method of payment having been involved, that decision is not in point on the issue now before us.
There remains only the question of the effect here of the Supreme Court's decision in . That decision does not purport to overrule the Kirby Lumber Co. case, but rather expressly recognizes it as representing a situation in which a gain in net assets through a reduction of indebtedness results in the realization of income. Cf. 1943 U.S. Tax Ct. LEXIS 90">*104 . In the American Dental case the cancellations resulted from the voluntary release by the creditors directly to the debtor of portions of their claims. The Court held that, the forgiveness having been gratuitous, the releases constituted gifts. In the instant case there was no direct negotiation between debtor and creditor, and there could not have been, since, strictly speaking, there was no obligation owing by the petitioner directly to the certificate holders, the rights of the latter being enforceable only through the trust company mortgagee. The certificates were dealt in on the market as property. Such situation does not contain the elements which, in our opinion, motivated the Court to hold as it did in the American Dental case. We think that case inapplicable here, and hold that the petitioner realized taxable income in the amounts by which the face value of the certificates surrendered exceed their cost to the petitioner.
In the determination of the deficiencies the respondent added to reported net income for 1935 and 1936 different amounts from those representing the excess of face value1943 U.S. Tax Ct. LEXIS 90">*105 of the certificates over cost. The correct amounts, as established by the evidence, and concerning which there seems to be no dispute, are set forth in our findings of fact. Other adjustments to reported net income are not in issue.
Decision will be entered under Rule 50.