1931 BTA LEXIS 2160">*2160 Amounts received during the taxable years under employment contracts providing for the payment of a fixed percentage of profits realized on the sale of timber lands are taxable in their entirety without any allowance for the March 1, 1913, value of contingent rights to receive the payments.
22 B.T.A. 196">*196 These proceedings, involving the redetermination of deficiencies in income taxes, were consolidated for hearing and decision. In the proceedings of John A. McPherson the deficiencies are for the years 1920 to 1924, inclusive, in the respective amounts of $477.49, $715.78, $636.34, $456.59, and $583.95. In the proceedings of George L. McPherson the deficiencies are for the years 1922, 1923, and 1924 in the amounts of $378.25, $469.74, and $418.04, respectively. The issue is whether sums received during the taxable years under certain contracts entered into prior to 1913 are taxable in their entirety or whether only the amounts in excess of the March 1, 1913, value of the rights to the payments are taxable.
FINDINGS OF1931 BTA LEXIS 2160">*2161 FACT.
The petitioners, residents of Portland, Oreg., during the taxable years, were the sole members of the partnership of George L. and John A. McPherson, which partnership was organized in 1906. In 1900 petitioners went to the west coast with the idea of locating desirable timber tracts which might be recommended to interests in the East for purchase. To become thoroughly familiar with the timber they worked in sawmills and logging camps in California, Oregon, and Washington. As a result of their investigations the petitioners selected the valley of the Nehalem River, a tributary of the Columbia River, as probably the best region in which to make timber purchases to yield early and substantial returns on the investments. This valley had been partially homesteaded, and the petitioners successfully carried out a plan of purchasing and consolidating many small tracts at favorable prices.
During the period from 1906 to 1910, inclusive, the partnership purchased for the account of five syndicates and three corporations, 22 B.T.A. 196">*197 which it was instrumental in organizing, and certain individuals, timber lands in the Nehalem River Valley in the State of Oregon, at a total cost1931 BTA LEXIS 2160">*2162 of $937,426.02. The timber tracts were purchased for the corporations, syndicates and individuals under agreements with the partnership which provided, among other things not material here, that title to the lands purchased should be taken in the name of the Detroit Trust Company, in trust for the benefit of the purchasers in proportion to the respective amounts contributed by them to the purchase price of the properties; that the partnership should be allowed 50 cents per acre for lands purchased, except certain land to be purchased from the Wyandotte Indians, on which it was to be allowed $1 per acre, these sums not to be considered as part of the purchase price of the properties; that,
Said second parties [partnership] shall also receive one-quarter (1/4) of the net profits of the lands purchased hereunder, when, and as fast as the same are sold. The total of the moneys invested in the purchase of lands, with interest thereon at the rate of six per cent (6%) per annum from time of payment into the pool by the parties of the first part, all taxes paid and other necessary expenses, with interest thereon at said rate, shall be deducted from the prices at which the lands are sold; 1931 BTA LEXIS 2160">*2163 and the difference shall be considered the net profit;
that the partnership was to notify the Detroit Trust Company of taxes assessed against the properties and to pay the same when provided with funds without charge; that the trustee was to advance funds with which to pay such taxes when, and as often as, needed; that the partnership was "to do the work reasonably necessary for the care and protection of the lands purchased hereunder and the prevention of trespass and to attend to the selling of the lands (where it is determined that it is best to sell), and will make no charge, except for moneys actually expended"; and that upon the sale of the lands, the proceeds, after deducting all necessary expenses incident to the sale, including reasonable compensation to the trustee, and the share of the net profits due the partnership, should be distributed by the trustee to the beneficiaries in proportion to their respective contributions.
The carrying charges on the various tracts purchased under the agreements, together with interest computed on the cost thereof at the rate of 6 per cent per annum from the time of payment into the pools by the investors, amounted, on March 1, 1913, to1931 BTA LEXIS 2160">*2164 $268,573.98. Such carrying charges and interest, and the cost of the lands amount to $1,206,000. On March 1, 1913, the tracts contained 1,297,000,000 feet of timber of a value of $2 per thousand feet, or $2,594,000. Such amount is $1,328,000 in excess of the cost of the tracts, plus interest thereon and carrying charges to March 1, 1913.
22 B.T.A. 196">*198 The partnership was paid 50 cents per acre for lands purchased for the corporations, syndicates and individuals under the agreements. This allowance did not compensate the partnership for the expenses it incurred in examining timber lands for purchase under the agreements.
The partnership managed the properties purchased under the agreements. The partnership advised the corporations, syndicates and individuals when to sell particular tracts of land. Such advice was always accepted.
Parcels of timber lands purchased under the agreements were sold during the taxable years for sums entitling the partnership to participate in the profits. In determining its income from the sales the partnership reduced the gross amount received by a proportionate amount of the March 1, 1913, value of its rights under the agreements. The respondent1931 BTA LEXIS 2160">*2165 disallowed the claimed deductions, and, accordingly, increased John A. McPherson's taxable income for 1920 and 1921 by $5,452.78 and $5,192.94, respectively, and the taxable income of each petitioner in 1922, 1923, and 1924 by the respective amounts of $6,101.23, $2,889.41, and $4,916.36.
The petitioners kept their books and filed their returns on the cash receipts and disbursements basis.
OPINION.
ARUNDELL: Testimony was offered that the partnership rights under the agreements described in the findings of fact had a fair market value on March 1, 1913, of $300,000. The figure testified to was roughly one-fourth of the then value of the timber lands in excess of their cost, plus interest, and carrying charges. The petitioners contend that only so much of the income received under the contracts in the taxable years as is in excess of this sum is taxable income. Petitioners, on March 1, 1913, not only had no right to demand any specific sum, but had no right to make any demand under the contracts. What, if anything, they were to receive depended entirely on what the future might hold. Payment, when and if made, was to be not only for services rendered by the partnership1931 BTA LEXIS 2160">*2166 prior to March 1, 1913, but covered as well services to be rendered by the petitioners after that date. They were to continue to perform certain duties until such time as the timber would be sold and it was impossible at March 1, 1913, to tell when that would be.
Regardless of whether the contracts had an ascertainable value at the basic date, the question of law presented has been decided adversely to petitioner's claim in a number of cases. In ; certiorari denied, , the plaintiff prior to March 1, 1913, wrote policies of insurance under agreements 22 B.T.A. 196">*199 with an insurance company entitling him, as compensation for his services, to a certain commission on the first premium paid by the assured, and a percentage of any renewal premiums paid. The contracts of employment contained a provision that "commissions shall accrue only as the premiums are paid in cash." In deciding that all of the commissions paid to the plaintiff after March 1, 1913, on business solicited prior thereto, was taxable income, the Court remarked:
It may be noted that, although fully earned by work already done, there is no certainty1931 BTA LEXIS 2160">*2167 that the sum conditionally promised for an ensuing year will ever be paid or will accrue or come due; John Doe may die within the first year, or at its expiration may refuse to renew his policy in which event the company is not obligated to pay its agent anything beyond the amount already paid him; the obligation to pay does not arise until John Doe actually pays his renewal premium in cash.
The same conclusion was reached in , and , affirming , on facts similar to those in the Edwards case. See also , and .
The fact that the contract rights had a determinable value on March 1, 1913, does not alter the rule. In the Workman case, supra, the Commissioner admitted that the right of the taxpayer to commissions on renewal premiums had a value on March 1, 1913, yet the Court, following 1931 BTA LEXIS 2160">*2168 , had no difficulty in reaching the conclusion that all of the commissions were taxable in the years paid. The argument against treating the contract rights as income fully earned by March 1, 1913, is much stronger here than it was in ;, and In those cases all of the work had been performed by the taxpayers prior to March 1, 1913, and on that date it could have been determined with a fair degree of accuracy what percentage of future premiums would be paid by the policyholders. Here the partnership had duties to perform for the owners after March 1, 1913, and some part of the amounts ultimately received may be said to be compensation for such services, payable when the timber was sold, provided a profit was realized by the owners. On March 1, 1913, it was believed by the petitioners that timber in the Nehalem Valley would enhance in value, but it is not claimed that at that time the approximate price at which the tracts would eventually sell could be determined.
The partnership on March 1, 1913, had1931 BTA LEXIS 2160">*2169 no enforceable claim against the owners for compensation, for then the partnership not only had not fully earned its pay, but it was not definitely known that any of the tracts would be sold at a price entitling the partnership to 22 B.T.A. 196">*200 participate in the profits. The rights of the partnership to additional compensation were unliquidated and contingent, and on March 1, 1913, it had no accrued right.
The case of , so much relied upon by the petitioners, is distinguishable on its facts. There it was known on March 1, 1913, that the assignee would exercise the options, that the properties would produce certain qualities of ore, and that payments sought to be taxed in their entirety would be made under the assignment. The case was regarded by the Court as not being inconsistent with the Edwards and Woods cases.
The respondent's action is sustained.
Decision will be entered for the respondent.