Hunt v. Commissioner

1927 BTA LEXIS 3471 | B.T.A. | 1927

Lead Opinion

OPINION.

MaRquette:

The evidence shows that in the year 1920 the petitioner conveyed to his daughter certain real estate referred to in the findings of fact; that the conveyance was made to the daughter as a gift and that the petitioner received no consideration therefor in money or money’s worth. The petitioner, therefore, did not realize any profit from the transaction.

The evidence also shows that in the years 1913 and 1914 the petitioner erected a building in Tulsa, Okla. The petitioner and the respondent are in accord as to the cost of the building but do not agree as to the rate that should be used in computing the allowance for the exhaustion, wear and tear thereof. The respondent has determined that the building has a useful life of 50 years, while the petitioner contends that its useful life is not to exceed 25 years, and that the allowance for exhaustion, wear and tear should be computed at the rale of 4 per cent. The only evidence submitted by the petitioner in support of his contention was the testimony of a real estate dealer of Tulsa, who testified that while the physical life of the building might be more than 50 years, in his opinion it would have to be torn down not later than 10 years from the present date, for the reason that the ground on which the building is situated is becoming so valuable that the building would not, after that time, bring adequate returns on the increased value of the ground.

The property was sold by the petitioner in 1924 at a very large profit and at the present time is apparently producing an adequate return on the investment. There is no satisfactory evidence before us that it will not continue to produce an adequate return over its useful life as determined by the respondent, or that it will become obsolete before that time.

The respondent has determined that the amounts withdrawn by the petitioner from the Hunt Company in the years 1920 and 1921, under the circumstances set forth in the findings of fact, represent distribution of profits and should be taxed to the petitioner as dividends. The petitioner contends that they represent advances to him by the corporation, which he intended to repay and that they do not constitute income. Upon consideration of the evidence, we are of the opinion that the Hunt Company was a close corporation owned by petitioner and his children, and that while no dividends were ever formally declared, the petitioner and his children helped themselves to the corporation’s earnings at such times and in such amounts as they saw fit. While notes were given to the corporation by the petitioner and his sons for the amounts so withdrawn, these notes were charged off as worthless, although it is clear that the petitioner could have paid the notes he gave. The evidence does not lonvince us that it was ever intended that these notes would be paid, and we therefore hold that the amounts in question, withdrawn by the petitioner from the corporation, constituted distributions of profits and that they should be treated as dividends and taxed as income to the petitioner.

Judgment will be entered on 15 days' notice, under Rule 50.