*1893 1. INCOME - SALE OF LAND. - Value as of March 1, 1913, as determined by respondent, accepted in the absence of proof of a higher value.
2. Id. - The value when received of certain notes secured by second mortgage on the property sold and evidencing the purchaser's indebtedness for the deferred payments, held, upon the evidence, to be $47,000.
3. Id. - DEPRECIATION, - The evidence disclosed that between March 1, 1913, and the year 1925, when sold, the orange grove in question was well cultivated and cared for and sustained no physical depreciation but, on the other hand, increased in productive capacity. Held, that on this showing respondent erred in decreasing the basis for computing gain on the sale, by an amount as representing depreciation sustained between those dates.
*296 This is a proceeding for the redetermination of a deficiency in income tax for 1925 determined by the respondent in the amount of $10,123.92.
The issue all relate to a sale in 1925 by the petitioner of Florida lands including an orange grove. The petitioner claims that*1894 (1) a greater value as of March 1, 1913, should be allowed for the property; (2) the notes of the purchaser evidencing the deferred payments have been assigned too great a fair market value; (3) effect has not been given to the decrease in value of said notes during the taxable year and to the virtual destruction of the orange grove *297 by the purchaser in subdividing the property which secured, by second mortgage, the payment of the notes; and (4) in computing the gain from the sale of the property, respondent has in error reduced the base by an arbitrary amount as representing depreciation sustained between March 1, 1913, and the date of sale.
FINDINGS OF FACT.
The petitioner is a resident of Tampa, Fla. Prior to March 1, 1913, he acquired by purchase approximately 55 acres of land bearing an orange grove and also approximately 44 acres of unimproved adjoining land, all located about 20 miles northwest of Tampa, in Pinellas County, Florida. In 1913 he purchased two acres of land which were surrounded by the lands before mentioned, paying a consideration at a rate of $2,100 per acre therefor. His main object in purchasing the two acres was to be relieved from his*1895 obligation to give the owner a right of way to the property over the petitioner's lands.
The orange grove was purchased about 1907. At that time the trees were already in bearing; some of them were 40 or 50 years old; the others were younger; there were three trees that were 70 or 80 years old; the land was adequately cultivated and fertilized; the grove was carefuly attended and the trees were kept in a flourishing condition; they gained in productive capacity from year to year. Orange trees, when rooted in favorable locations, are long lived; individual examples in Florida which are still producing fruit are reputed to be over 300 years old. Orange orchards operated upon a commercial basis first came into practice about 1874 and some of them are still in productive operation. Orange trees are susceptible to damage from insects and from a fungus growth; they are damaged and sometimes destroyed by windstorms and they suffer from a disease of the roots known as "foot rot," which may prove fatal to an old tree. Orange groves suffer rapid depreciation when they are not cared for and they respond to cultivation and intelligent care. The physical condition and productive capacity*1896 of the orange grove of the petitioner was maintained undepreciated during the period beginning March 1, 1913, and ending with its sale in 1925.
In June, 1925, the petitioner sold approximately 50 acres of said citrus-bearing land and 44 acres of said unimproved land for a consideration of $400,000, of which $20,000 was satisfied by the assumption by the purchaser of a first mortgage for $20,000 then standing upon the property, and an amount of $50,000 first payment was paid in cash immediately; the remainder of the consideration was deferred in payment, being secured by second mortgage upon the property and evidenced by notes of the purchaser falling due in the following *298 dates and amounts: August 31, 1925, $10,000; October 31, 1925, $35,000; January 31, 1926, $76,250; July 31, 1926, $76,250; January 31, 1927, $76,250; July 31, 1927, $56,250. The petitioner paid in 1925 an amount of $10,000 commission for the sale of the property. The notes due in August and October, 1925, were paid in full. The notes due subsequent to 1925 had a fair market value in 1925 amounting in the aggregate to $47,000. Cash in the amount of $18,000 was collected on account of the note due*1897 in January, 1926. No further collections were ever made upon the balance of the deferred payments.
Title was taken by an intermediary, who immediately transferred it to a corporation organized for the purpose; the corporation had practically no assets other than the said lands taken over. This corporation proceeded without delay to subdivide the property into building sites and it caused streets and alleys to be cut through the orange orchard. No attempt was made to maintain or care for the orange trees. On the day of the opening of the sales campaign the lots were put up at auction and sales during the day aggregated $240,000 with, however, provision for small down payments of cash and deferred payments of the balance. One lot, which included the burial place of an early settler, was sold to his descendants for a price of $10,000. This price was considered high at the time and was attributed to sentimental impulses. In time most of the purchasers defaulted, the great majority of them never making the agreed second payment. However, titles to various lots, scattered in location, were actually acquired by purchasers. Some clearing of sites was done; one house was completed, *1898 others were partly erected. The petitioner endeavored in the fall of 1925 to dispose of the notes for the deferred purchase money but was unable to do so. He applied to his bank for a loan of $30,000, proposing to deposit the notes as collateral security, and this proposition was accepted and the loan was made; at the same time he was informed his credit was good without reference to the sufficiency of the collateral security offered by the notes; he later went back and borrowed an additional $20,000. He repaid $25,000 of the loans prior to the end of 1925, leaving an indebtedness at the end of the year of $25,000. The boom collapsed prior to the end of 1925 and the value of the land decreased. There was no market for the notes of the purchaser. The bank carried this loan until 1928 when the mortgage securing the notes was foreclosed, the property was bought up at the foreclosure sale, and is now held by a corporation formed for the purpose of taking title to it, of which corporation the petitioner is a stockholder; the bank is carrying a loan of $25,000 evidenced by a note of which the petitioner is an endorser in his individual capacity and which is secured by a mortgage upon*1899 the property.
*299 In computing the taxable income from the sale here under consideration, the respondent has determined the following values of factors in the computations: a value of $81,710 for the notes of the purchaser which were due subsequent to 1925; a value as of March 1, 1913, for the lands and orange grove, of $2,000 per acre for 50 acres of citrus-bearing land and of $500 per acre for 44 acres of unimproved land, or an aggregate value of $122,000; accumulated depreciation of the orange grove during the period beginning March 1, 1913, and ending December 31, 1924, at 2 1/2 per cent per annum, in an aggregate of $22,187.50.
OPINION.
TRUSSELL: The issues in this case are all in respect to the computation for income-tax purposes of income realized by the petitioner in 1925 from a sale of Florida lands which the vendor had acquired prior to March 1, 1913. The method of computing the taxable income is not in dispute and we give no consideration to it. We are required to decide purely fact questions with reference to certain factors involved in the computation.
Fifty acres of lands sold were citrus bearing and the petitioner claims that they had a value as*1900 of March 1, 1913, greater than the $2,000 per acre which the respondent has assigned to them. In substantiation of his claim the petitioner relies upon his purchase of two acres of contiguous citrue-bearing land in 1913 for which he paid $2,100 per acre. It appears, however, from the testimony of the petitioner, that his motive in acquiring this land was to get rid of a troublesome right of way across his lands and for this reason we think the sale may not be accepted as representative. There is no satisfactory evidence in support of the claim of the petitioner and we have no alternative but to leave unadjusted the valuation allowed by the respondent.
The amount of the cash consideration for the property which the petitioner collected during the taxable year is not in dispute. In addition he received certain promissory notes of the purchaser evidencing agreed-upon deferred payments falling due subsequent to the taxable year. For these notes, which had a face value in the aggregate of $285,000 the respondent has assigned a value when received of $81,710. The petitioner admits that they had some value when received and obviously this is undeniable, for they were secured by a*1901 second mortgage upon all of the land and the amount of the superior mortgage was only $20,000. But it does not appear that there was any real market for them or that they had any value in excess of the security behind them. In evaluating that security any prudent invester in the notes would discount the impending *300 destruction of the orange grove. It was apparent that the operations of the purchaser would quickly reduce the security to that of a second mortgage covering substantially unimproved land wherein no greater value existed than for the purpose of subdivision and sale as building lots upon terms of very little cash down, with deferred payments of practically no readily realizable value. After a consideration of all of the facts in this case we conclude that the notes which were due subsequent to 1925, should be valued for our purposes here at $47,000, in lieu of the value of $81,710 assigned by the respondent. The net income will be recomputed accordingly.
The remaining claim of the petitioner is that respondent has reduced 1913 value and consequently increased the net profit from the sale by an arbitrary amount as representing accumulated depreciation on*1902 the orange grove when, in fact, no depreciation was sustained. The uncontradicted testimony shows that the grove was carefully cultivated and cared for so that in 1925 when it was sold it was in prime physical condition and of increased productive capacity. We must conclude that on the facts proven in this particular case no depreciation whatever actually occurred. Such was our conclusion with respect to a grove of walnut trees, upon a proper fact showing, in the case of . The case of , cited by respondent is not controlling here. In that case it was stipulated that the orange grove in question had a useful life of 30 years but that stipulation had effect to determine facts only in that case. It can not be used to disprove the facts here established.
The action of respondent in reducing the 1913 value used in determining profit on the sale in 1925 by an amount as representing depreciation sustained between those dates is disapproved.
Judgment will be entered pursuant to Rule 50.