*2889 By an option executed December 7, 1920, petitioner agreed to sell all his stock to another within 15 days. On the last day of the option period he refused to sell all the stock, but offered to sell half the stock in 1920 and half of it in 1921. This offer was accepted. Half the stock was placed in the hands of a third party to be delivered January 2, 1921, if payment were then made. The third party, unauthorized by petitioner, delivered the stock in 1920 and paid a check in payment dated January 2, 1921. This amount was credited to petitioner's bank account on or about January 3, 1921. Held that the new contract discharged any prior contract for sale of the stock; that the intention of the parties was that title to one-half the stock should not pass until 1921 and that only half of the profit derived from the sale of all the stock was income in the year 1920.
*261 This is a proceeding for the redetermination of a deficiency in income and profits taxes for the year 1920 in the amount of $13,003.78.
The error assigned is the holding of*2890 the respondent that the petitioner sold all the stock of the Morris Smokeless Coal Co. in 1920, whereas petitioner alleges a part was sold in 1920 and a part in 1921.
FINDINGS OF FACT.
The petitioner is an individual residing in Logan County, West Virginia.
In 1920 petitioner was the owner of 555 shares of stock of the Morris Smokeless Coal Co. which had cost him $66,250. J. J. Salaski, a protege of petitioner, also owned 50 shares of this stock. H. T. Tribou, secretary and treasurer of the Morris Smokeless Coal Co., desired to purchase the stock owned by petitioner, and petitioner, on December 7, 1920, after Tribou had agreed to also include the stock held by Salaski, executed an option providing that Tribou might purchase his stock within 15 days for $136,250. A separate option was written for Salaski's stock at $250 per share. Petitioner had an agreement to purchase the stock from Salaski for $220 per share.
In making these options petitioner did not take into consideration any income-tax features. However, between December 7 and December 22, 1920, he was advised that if all the stock were sold in 1920 the tax would be greater than the total of tax upon the profit*2891 derived if half of the stock were sold in each of the years 1920 and 1921. The petitioner then regretted that he did not provide in the option that half of the stock should be sold in 1921.
On December 22, 1920, the petitioner and Tribou held a conference at the bank with Mr. Hedrick, cashier of the bank. Tribou then refused to buy Salaski's stock. The petitioner then tore up the options and started to leave the bank. Hedrick called him back and the petitioner told Tribou that he would sell his stock on one basis only. Petitioner proposed to give Tribou 50 per cent of the stock on that day and leave the balance with Hedrick to be delivered to Tribou on January 2, 1921, provided Tribou paid Hedrick $68,125 on January 2, 1921. Tribou agreed to this and gave petitioner a check for $68,125. It was not possible to equally divide the stock since the certificates were not of the required denominations, but petitioner divided it as equally as possible and delivered it to Hedrick and Tribou. The petitioner then left the building and wired his wife that he had "cleaned up." The petitioner's purpose in attempting to divide the sale was to avoid taxation. Tribou did not buy or agree*2892 to buy Salaski's stock until four years later. Immediately after petitioner had left the bank Hedrick delivered the remainder *262 of the stock to Tribou. One reason for so doing was that the stock certificates could not be equally divided. Another reason was to obviate the necessity of having Tribou, who was in poor health, drive into town again. The road at that time of the year was almost impassable.
Tribou, on either December 22 or December 27, 1920, gave Hedrick a check dated January 2, 1921, in the amount of $68,125, for the balance of the stock. Tribou had more than this amount on deposit at the bank. This amount was credited to the petitioner's account by the bank on or about January 3, 1921.
The petitioner included one-half of the profit from the sale of the stock in his return for the year 1920, and one-half in his return for 1921.
OPINION.
SIEFKIN: The petitioner sold 555 shares of stock of the Morris Smokeless Coal Co. to H. R. Tribou for $136,250, and derived a profit thereon of $70,000. The sole question to decide is whether all of this stock was sold in 1920 or whether one-half of it was sold in each of the years 1920 and 1921. The respondent*2893 held that all the stock was sold in 1920 and asserted the deficiency in tax herein upon the basis of the receipt of the full amount of the profit in 1920.
The real test of when the title to property passes is the intent of the parties. In , the Supreme Court of West Virginia stated:
* * * In , this court, after an elaborate review of the authorities on the subject, held that "the question whether a sale of personal property is complete or only executory is to be determined from the intent of the parties as gathered from the contract, the situation of the thing sold, and the circumstances surrounding the sale."
By an option executed by petitioner and delivered to Tribou, the former agreed to sell all the stock to Tribou at any time within 15 days after December 7, 1920. During that period, on December 22, 1920, the parties held a conference and the petitioner refused to sell according to the terms of the option. He then proposed to sell Tribou one-half of the stock immediately and to sell him the other half on January 2, 1921. This was done in order to distribute the profit between*2894 the two years in order to reduce the amount of tax upon the sale. Tribou accepted the offer and petitioner instructed Hedrick to deliver the remaining half of the stock to Tribou on January 2, 1921, if Tribou on that date paid $68,125. Petitioner immediately left the conference.
The contract entered into between petitioner and Tribou on December 22, 1920, discharged any prior agreement between them. In ; , the Supreme Court of Appeals of West Virginia stated:
* * * It *263 is well settled by this court and by other authorities, that a contract may be discharged by the parties thereto, by an entirely new one entered into by them with reference to the same subject matter, the terms of which are coextensive with but repugnant to the original contract. ; 3 Page on Contracts § 1354; , 73 C.C.A. 43. * * *
From all the evidence we are of the opinion that the parties intended that title to one-half of the stock should not pass until January 2, 1921. *2895 The fact that Hedrick did deliver the stock to Tribou in 1920 and that Tribou gave Hedrick a check for $68,125 in 1920, in our opinion does not affect the case. The check was dated January 2, 1921, and the petitioner's account was not credited with the amount until January 3, 1921. In the absence of evidence as to the basis used in accounting and in making his return, we assume that the petitioner was on the cash receipts basis. See . Only one-half of the stock was sold in 1920 and only $35,000 of the total profit derived from the sale of all the stock was income to petitioner in 1920.
Reviewed by the Board.
Judgment will be entered under Rule 50.
VAN FOSSAN concurs in the result only.
MURDOCK, dissenting: I dissent from the prevailing opinion in this case, which holds that, since the parties to the agreement of December 22 did not intend that titlt to one-half of the stock should pass in the year 1920, therefore, one-half of the profit was not taxable in that year. This opinion also states that the fact that Hedrick did deliver the stock to Tribou in 1920, and in the same year received a check for*2896 $68,125 in payment for the stock from Tribou, does not affect the case. I can not agree with this reasoning. The method used by the petitioner in keeping his books and making his income-tax return has not been shown. The case of John A. Brander cited is not in point. If the petitioner used some accrual method, then it seems to me the Commissioner's determination is correct, for upon the delivery of the stock to Tribou under the circumstances stated, a right to receive the agreed purchase price would immediately accrue to the petitioner. It does not appear that he ever repudiated Hedrick's act in delivering the stock and receiving the check in 1920. On the contrary, he apparently ratified this act. It will be noted that this act was not in accordance with the agreement of the parties and therefore the original intent of the parties would make no difference because their agreement was not carried out. Furthermore, *264 even if the petitioner used the cash method of keeping his books and reporting his income, since as I say, he apparently ratified Hedrick's unnoticed act, it might be that he received the equivalent of cash in the year 1920, but it is not necessary to*2897 discuss this question in a dissenting opinion.
SMITH agrees with this dissent.