Docket No. 10126. | B.T.A. | Aug 22, 1927
Lead Opinion
The fundamental question for determination in this appeal is when was the stock acquired by the petitioner. Section 202(a) (2) of the Revenue Act of 1918 provides that the basis for ascertaining the gain derived or loss sustained from the sale or other disposition of property acquired after March 1, 1913, shall be the cost thereof to the taxpayer. In this case the petitioner received the stock as a residuary legatee under a will and the cost to her is the fair market value thereof at the date she acquired it. The value of this stock at each of the various dates material to the present inquiry is set forth in the findings of fact and we need only to decide the date upon which it was acquired by the petitioner.
This question has been heretofore exhaustively considered in a case strikingly parallel to the present appeal. The domicile of the decedents, the capacity in which the taxpayers acquired the property in controversy (residuary legatees), the nature of the property (shares of stock) forming the subject matter of the transaction giving rise to the controversy, and the revenue act involved, are the same in each case. In that case we held that the date on which the taxpayer acquired the stock was the date of its actual distribution to him and not the date of the death of the testator, and that “ any amount representing an increase in the value of the stock between the
The respondent, in determining the deficiency, held that the petitioner acquired this stock at the date of testator’s death and that the value thereof at that time is the cost upon which to base the determination of gain or loss resulting from the sale thereof. This is the same position urged in the Matthiessen appeal. No argument or authority has been advanced by the respondent in this case in support of his action that was not considered in the Matthiessen appeal, and we see no reason for altering our views expressed therein. Upon the authority of that case we conclude that the respondent erred in determining the deficiency in this appeal.
In view of our conclusions upon the first issue, it is unnecessary to consider the second or alternative issue raised.
The determination of the respondent is disapproved.
Judgment will he entered on 15 days’ notice, under Bule 50.