1941 BTA LEXIS 1325">*1325 Held, that where title to property was retained during the taxable year and petitioner fails to establish alleged worthlessness and abandonment, the respondent's disallowance of claimed loss is approved.
44 B.T.A. 457">*457 OPINION.
TYSON: The income tax deficiency here in controversy, in the amount of $710.41 for the calendar year 1935, results from the respondent's disallowance of a deduction of $3,500 claimed on the 1935 income tax return of Charles A. Bickerstaff as a loss sustained upon his abandonment of certain real property in that year. Petitioner assigns error in such disallowance.
The proceeding has been submitted upon a stipulation of facts embracing certain exhibits, which stipulation we adopt and, by reference, incorporate herein as our findings of fact. There are set forth herein only such of those facts as we deem necessary to our decision.
The petitioner, a resident of Atlanta, Georgia, is the executrix of 44 B.T.A. 457">*458 the estate of Charles A. Bickerstaff, deceased. The latter will be hereinafter referred to as Bickerstaff.
In August1941 BTA LEXIS 1325">*1326 1925 Bickerstaff paid the full purchase price of $3,500 for, and thereupon became the owner of, certain unimproved real estate known as lot 10, block 10, Manatee County, Florida.
The state and county taxes on that property were not paid for the years 1932, 1933, 1934, and 1935. At the end of the latter year such accrued taxes, with interest, amounted to approximately $75. The assessed value of the property was $100.
In 1933 a tax certificate was issued to the Treasurer of the State of Florida for the delinquent taxes for 1932. That certificate was held by the state for more than two years and then sold to Mrs. M. J. Mooney. On January 4, 1937, the state executed to Mrs. Mooney a deed to the property in question.
On December 24, 1935, Bickerstaff executed what purported to be a quitclaim deed, embracing the property here in question, to the tax collector of Manatee County, Florida. Such deed, together with a letter dated December 24, 1935, was mailed to and was received by the tax collector during December 1935. The deed was retained by the tax collector, but was not recorded on the county records because it had not been properly attested, in that there was only one witness1941 BTA LEXIS 1325">*1327 thereto. In his letter Bickerstaff stated that he desired to "stop further tax payments" on the property and that the tax collector was "fully authorized by this quit claim to sell the lot for any amount of taxes due" thereon. Thereafter, Bickerstaff did not, at any time, exercise or attempt to exercise any ownership or control whatsoever over that property.
The petitioner contends that Bickerstaff sustained a deductible loss of $3,500 in 1935 through abandonment of worthless property in that year. The respondent contends that the quitclaim deed was invalid; that there was no actual abandonment of the property in 1935; and that the loss of Bickerstaff's investment of $3,500 was sustained in 1937 upon the expiration of his equity of redemption at the time the state's deed was issued to Mrs. Mooney in that year.
An application of the statutes of the State of Florida, as construed by numerous decisions of the courts of that state, to the facts in the instant case results in the following conclusions of law: The tax certificate issued to the state in 1933 evidenced a lien on the property in question superior to all others. 1941 BTA LEXIS 1325">*1328 Bickerstaff had a right of redemption within two years from the date of the issuance of such certificate by payment of the full amount of the taxes due, plus interest thereon, costs, charges, and penalties as prescribed by statute. The state's sale of the tax certificate to Mrs. Mooney, after a lapse of the two-year redemption period, constituted a sale of state property and she, as the owner of such tax certificate, then had a right under one of 44 B.T.A. 457">*459 several statutory methods of procedure to enforce a conveyance of the property to her unless the tax certificate was duly redeemed.
Petitioner relies principally upon the decisions in
In our opinion the facts in the instant case do not bring it within the rationale of the above cited cases, for the stipulated facts herein do not establish actual worthlessness of the property and an abandonment thereof in the taxable year 1935. The record herein merely shows that the accrued taxes, with interest, amounted to $75 and that the assessed value of the property was $100. In
In our opinion the instant proceeding is controlled by our decisions in
Reviewed by the Board.
Decision will be entered for the respondent.
LEECH concurs only in the result.
BLACK, dissenting: I think the petitioner should be allowed his loss for the year 1935, the year which is now before us, rather than to postpone it to some subsequent year when his title to the realty was completely extinguished.
I think the facts recited in the majority opinion show that for all1941 BTA LEXIS 1325">*1332 practical purposes the property in question was worthless in 1935 and that decedent in that year clearly and unmistakably evidenced his intention to abandon it.
While, under the laws of Florida, decedent doubtless retained an equity of redemption of the property in question until 1937, nevertheless, where, as here, a taxpayer intends to and does in fact effectually abandon worthless property during the taxable year in question, the loss of his investment in such property is sustained and is deductible in that year as an ordinary loss, despite the retention of an equity of redemption which is devoid of volume.
Because of the foregoing reasons, I respectfully dissent from the majority opinion.
ARUNDELL agrees with this dissent.
Footnotes
1. Entered as a memorandum opinion October 26, 1940. ↩