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R. D. DAVIS, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Davis v. Commissioner

Docket No. 21237.

United States Board of Tax Appeals

21 B.T.A. 1078; 1931 BTA LEXIS 2254;

January 8, 1931, Promulgated

*2254 In 1922, the petitioner exchanged stock in one corporation, held for investment, for stock in another corporation of a like kind and use, plus a small amount of cash. The exchange was made preparatory to dissolution of the old corporation. Held, that no deductible loss resulted from such transaction under section 202(c)(1) of the Revenue Act of 1921.

Chester A. Bennett, Esq., for the petitioner.

Lloyd W. Creason, Esq., for the respondent.

TRAMMELL

*1078 This is a proceeding for the redetermination of a deficiency in income tax for the calendar year 1922 in the amount of $489.73. The issue is whether or not the petitioner sustained a deductible loss as the result of exchanging shares of stock in one corporation upon its liquidation for shares of stock in another corporation and cash during the taxable year.

FINDINGS OF FACT.

The petitioner is an individual and citizen and resident of the city of Ashland, Boyd County, Ky.

Upon the death of his father in July, 1913, the petitioner inherited 200 shares of stock, having a fair market value of $27,000, in the W. H. Dawkins Lumber Co., a corporation. In the year 1919 the W. H. Dawkins*2255 Lumber Co. entered into a contract involving the manufacture of timber upon a tract of land in northeastern Kentucky owned by certain interests in Montreal, Canada.

As a result of this agreement, the Dawkins Lumber Co. was organized and a railroad constructed to said tract. The latter company began operations in 1922. The W. H. Dawkins Lumber Co. had paid in to the new combination and had acquired in the Dawkins Lumber Co. stock in the sum of $499,500. In the meantime, the W. H. Dawkins Lumber Co. wound up its business, reduced all of its assets to cash, except the said amount of stock in the Dawkins Lumber Co., and was dissolved.

When the W. H. Dawkins Lumber Co. was dissolved in 1922, the petitioner received a cash dividend of $2,901.38 and 499 1/2 shares of stock in the Dawkins Lumber Co. of a market value of $27 per share, of a total market value of $13,486.50. He also received from tax refunds the amount of $124.64, making a total of $16,512.52 received as proceeds of the liquidation of his stock in the W. H. Dawkins Lumber Co.

*1079 The difference between the total amount of the proceeds received from the liquidation of his stock in the W. H. Dawkins Lumber*2256 Co. and the fair market value of said stock when acquired, or the amount of $10,487.48, was taken as a deduction from gross income in the return filed by the petitioner for 1922, which deduction was disallowed by the respondent.

OPINION.

TRAMMELL: During the taxable year 1922 the petitioner exchanged stock in the W. H. Dawkins Lumber Co. for stock in the Dawkins Lumber Co. plus cash in the aggregate amount of $3,026.02. The exchange of the stock and distribution of the cash constituted a part of the process of liquidation of the first named corporation prior to its dissolution. The petitioner's original stock had a fair market value of $27,000 at the time acquired by inheritance in 1913. The stock received in exchange had a fair value of $13,486.50. The difference between the value of the new stock, plus the cash received, and the value of the old stock when acquired, was $10,487.48, which amount the petitioner claims as a deduction from gross income. The respondent contends that his disallowance of the deduction should be sustained for the reason that under section 202(c)(1) of the Revenue Act of 1921, no gain or loss could be recognized as resulting from the said transaction.

*2257 No evidence was offered by either party at the hearing, the case being submitted on the pleadings, from which we have found the facts above set out. The deficiency herein is based upon the respondent's determination that the exchange of stock in the old corporation for stock in the new corporation constituted an exchange of property held for investment for property of a like kind or use, within the contemplation of the statute. The burden is, therefore, upon the petitioner to show that the stock was not held for investment or was not exchanged for property of a like kind or use. Not only was no evidence offered to prove such fact, but no facts are alleged in the petition which are inconsistent with the determination of the respondent on this point, and the petitioner has submitted no brief, nor has he otherwise controverted such contention of the respondent.

The Revenue Act of 1921, which is the statute applicable here, provides, in section 202(c)(1), that, when any property held for investment, whether real, personal or mixed, is exchanged for property of a like kind or use, no gain or loss shall be recognized for income-tax purposes, and, in section 202(e), that, when such*2258 an exchange as provided in the above subsection is made except that there is also included cash or other property, the money or other property *1080 shall be applied against and reduce the basis of the property exchanged.

The facts in this proceeding bring it squarely within the provisions of the above statute. The petitioner exchanged property held for investment, namely, the stock in the old corporation, for property of a like kind or use, namely, stock in the new corporation. He also received a small amount of cash in consideration of his surrender of the old stock. This, however, does not take the case out of the operation of the statute. The cash adjustment incident to the exchange should be applied against and used to reduce the basis for determining gain or loss upon a subsequent sale of the new stock, in accordance with the provisions of section 202(e) of the statute. , but no gain or loss resulted in this case.

The exchange of the petitioner's stock in the old corporation for stock in the new corporation and cash was a preliminary incident to the dissolution of the old corporation. *2259 This fact, however, does not affect the states of the transaction for tax purposes. . See also ; . The determination of the respondent is approved.

Judgment will be entered for the respondent.

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