*2258 Certain rentals received in 1920 by the Aldrich Land Co., a corporation affiliated with the petitioner, held to be the income of the Aldrich Land Co.
*1092 This proceeding is for the redetermination of a deficiency in income and profits taxes asserted by the respondent for the year 1920 in the amount of $92,352.28. The petitioner alleges that the respondent erred: (1) In disallowing in part deductions from gross income taken by the petitioner for the exhaustion, wear and tear of its assets, and on account of salaries paid; and (2) in taxing to the petitioner the amount of $105,800 received in 1920 by a corporation with which the petitioner was affiliated.
FINDINGS OF FACT.
The petitioner is a corporation, organized in 1910 under the laws of California. The scope of the company's activites, as authorized by its articles of incorporation, is as follows:
* * *
SECOND: That for the purposes for which it is formed are to acquire, hold, own, by, sell, convey, hire, lease mortgage, and improve real estate; *2259 to acquire, hold, own, mortgage, sell, deal and trade in all kinds of personal property, rights, privileges and franchises; to acquire, hold, own, buy, sell, improve and develop water rights and privileges, water bearing lands, reservoirs, pipes, pipe lines and ditches, and do and perform and contract for and construct anything to hold, store, convey and distribute water; to build, erect, construct, buy, sell or lease factories for the manufacture of sugar or other products from beets, and to engage in the manufacture of sugar from beets or other products, *1093 and to buy, sell, and deal in sugar produced from beets or came; to buy and sell cattle, or other live stock and to feed cattle; to produce, manufacture and sell the residue or by-products made in the manufacture of sugar, or in connection therewith, and to buy, sell, lease, mortgage, or contract for anything and to do any and all things necessary to the business of manufacturing sugar out of beets or cane or other products; to plant, cultivate and produce beets for the manufacture of sugar therefrom; to buy and sell, to mortgage and pledge, or otherwise deal in and trade in stocks, bonds and securities of every kind*2260 and character; to buy, acquire, barter for, sell, exchange, hold, mortgage, pledge and otherwise deal in and trade in the shares of its own capital stock or bonds and in the shares of the capital stock or bonds of every kind of a corporation; to borrow and lend money; to issue bonds, promissory notes and other evidences of indebtedness; and to mortgage and hypothecate all or any of the corporate property including any of its unissued or unsubscribed stock; to negotiate loans and secure the same by mortgage or pledge of shares of its capital stock, whether or not the shares used as security have heretofore been issued or subscribed. To construct, carry out, maintain, improve, alter, work, control and superintend any ways, tramways, railroads, roads, or other works and conveniences which may seem directly or indirectly conducive to any of the objects of this company, or otherwise, and to contribute or otherwise aid in or take part in any such operations; to carry on and conduct the business of manufacturing, wholesaling and retailing sugar, and all sugar and other products indcidental to or in any way connected with the manufacture of sugar; to acquire the good will, rights and property, *2261 and to undertake and assume the whole or any part of the assets and liabilities of any firm, person, association, or corporation and pay for the same in cash, stock of this corporation, bonds or otherwise; to apply for, obtain, purchase, lease, or otherwise acquire any and all trade-marks, trade names, Letters Patent and rights secured thereby and carry on the business involving the same; to conduct, and engage in and carry on any kind of business including the business of merchants, and all things thereto belonging and also buying and selling and retailing all sorts of goods, wares, merchandise, and commodities and produce, also the commission business; and to do any and all other things, and to carry on any and all other business operations which may be necessary or useful or proper or convenient or incidental or auxiliary to the doing, effectuating or accomplishing any or all of the purposes or objects for which the corporation is organized.
The petitioner sustained exhaustion, wear and tear of its assets during the year 1920 in the amount of $120,989.
In the year 1920 the petitioner paid to its president, A. R. Beck, for services rendered in that year, the amount of $45,000.
*2262 The Aldrich Land Co., a corporation, was a holding company, all of the capital stock of which was, during the year 1920, owned by the petitioner. The petitioner and the Aldrich Land Co., filed a consolidated return for that year.
During the year 1920 the Walberg-Dozier Land Co. was a corporation which had only qualifying shares outstanding, all of which were owned and held by attorneys for the petitioner. It was used merely as a name through which land transactions were sometimes made for the use and benefit of the petitioner.
On August 29, 1919, the Walberg-Dozier Land Co. acquired a lease, with an option to purchase, of about 886 acres of land known *1094 as the Borchard Ranch, situated in Orange County, California. On the same date the Walberg-Dozier Land Co. executed and delivered to the petitioner a statement in writing to the effect that it held the premises described in said lease for the benefit of the petitioner, and the petitioner executed an agreement guaranteeing the rents reserved by said lease.
On August 21, 1920, the Walberg-Dozier Land Co. exercised the option under said lease and purchased the Borchard Ranch for $335,000, of which amount $200,000*2263 was represented by a mortgage then on the premises. The balance of the purchase price was paid by the Aldrich Land Co. with money advanced to it on August 20, 1920. Title was taken in the name of the Walberg-Dozier Land Co. On August 23, 1920, the Walberg-Dozier Land Co. conveyed the said Borchard Ranch to the Aldrich Land Co. At that time the officers of the petitioner and the Aldrich Land Co. did not desire that competitors should know that the Aldrich Land Co. owned said Borchard Ranch, and the title was not recorded until 1922, when it became necessary for the Aldrich Land Co. to borrow $175,000, secured by said land.
On or about October 1, 1920, the Walberg-Dozier Land Co. leased to the General Petroleum Corporation 120 acres, and on October 16, 1920, it leased to the National Exploration Co. 160 acres of the Borchard Ranch. Each lease reserved certain rents and royalties, and in addition the lessees paid to the Walberg-Dozier Land Co. bonuses in the total amount of $105,800. On the dates said leases were made they were assigned by the Walberg-Dozier Land Co. to the Aldrich Land Co., together with said bonuses. Upon receipt of said bonuses the Aldrich Land Co. credited*2264 $40,800 thereof to the petitioner and $65,000 to its own mortgage redemption fund account. No part of said amount of $105,800 was distributed as a dividend in 1920.
There was no agreement between the petitioner and the Aldrich Land Co. that the income or profits taxes of the Aldrich Land Co. migh be assessed against or collected from the petitioner.
The petitioner and the Aldrich Land Co. filed a consolidated return of income for the year 1920. Upon audit of said return the respondent disallowed, in part, deductions taken by the petitioner on account of exhaustion, wear and tear of its assets and salaries paid to its president in 1920, and he also added to the petitioner's income as reported the amount of $105,800 paid in that year as bonuses by the lessees of the Borchard Ranch as hereinabove set forth.
OPINION.
MARQUETTE: At the hearing counsel for the parties hereto stipulated that in computing its net income for the year 1920 the petitioner *1095 is entitled to deduct $120,989 for the exhaustion, wear and tear of its assets, and $45,000 on account of salary paid to its president in that year. The petitioner's income as heretofore determined by the respondent*2265 will be adjusted accordingly.
The only other question raised by the record is whether the amount of $105,800 received by the Aldrich Land Co. in 1920, as set forth in the findings of fact, constituted taxable income to the petitioner.
It appears to be the position of the respondent that the Aldrich Land Co. did not have title to the Borchard Ranch in 1920, but that title was held by the Walberg-Dozier Land Co. in trust for the petitioner and that, therefore, the rentals in question belonged to the petitioner and constituted a part of its income. We are unable, in the light of the facts disclosed by the record, to agree with the respondent. The evidence establishes that while the option to purchase the Borchard Ranch was taken by the Walberg-Dozier Land Co. in trust for the petitioner, the purchase price, when the option was exercised, was paid by the Aldrich Land Co. with $135,000 cash advanced to it by the petitioner and by the assumption of a mortgage for $200,000, and that two days later the title was conveyed to the Aldrich Land Co. by the Walberg-Dozier Land Co., in the name of which title was first taken; and there is nothing in the record to indicate that the Aldrich*2266 Land Co. held the land in trust for, or for the benefit of, any other corporation or person. The fact that the deed to the Aldrich Land Co. was not recorded until 1922 has been satisfactorily explained and does not affect the legal aspect of the situation. Since the land belonged to the Aldrich Land Co. on and after August 23, 1920, the rentals received in October of that year belonged to that company and constituted income to it.
While these rentals were income to the Aldrich Land Co., we must consider whether they may, nevertheless, be taxed to the petitioner, which was the owner of all of the capital stock of the Aldrich Land Co. Section 240 of the Revenue Act of 1918 provides that:
SEC. 240. (a). That corporations which are affiliated within the meaning of this section shall, under regulations to be prescribed by the Commissioner with the approval of the Secretary, make a consolidated return of net income and invested capital for the purposes of this title and Title III, and the taxes thereunder shall be computed and determined upon the basis of such return; * * *
In any case in which a tax is assessed upon the basis of a consolidated return, the total tax shall be computed*2267 in the first instance as a unit, and shall then be assessed upon the respective affiliated corporations in such proportions as may be agreed upon among them, or, in the absence of any such agreement, then on the basis of the net income property assignable to each. * * *
(b) For the purpose of this section two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns directly or controls *1096 through closely affiliated interests or by a nominee or nominees substantially all the stock of the other or others, or (2) if substantially all the stock of two or more corporations is owned or controlled by the same interests.
The petitioner and the Aldrich Land Co. were affiliated during 1920 within the meaning of the section of the statute quoted and they properly, pursuant to the requirements of that statute, filed a consolidated return of income and invested capital. But they did not enter into any agreement as to the allocation of the tax liability shown on the consolidated return. It therefore became the duty of the respondent to compute the taxes upon the basis of the consolidated return and assess them against the two companies on the basis*2268 of the net income properly assignable to each. ; . It follows that while in that situation the rentals received by the Aldrich Land Co. from the lessees of the Borchard Ranch constituted income to that company, which should be reported on the consolidated return of the petitioner and the Aldrich Land Co., they are not taxable to the petitioner.
Judgment will be entered under Rule 50.