FLEMING v. COMMISSIONER

Albert Fleming, Petitioner, v. Commissioner of Internal Revenue, Respondent. Winnie A. Fleming, Petitioner, v. Commissioner of Internal Revenue, Respondent. Lou B. Fleming, Petitioner, v. Commissioner of Internal Revenue, Respondent. Calvin A. Fleming, Petitioner, v. Commissioner of Internal Revenue, Respondent FLEMING v. COMMISSIONER Docket Nos. 3196, 3197, 3202, 3205 United States Tax Court 4 T.C. 168; 1944 U.S. Tax Ct. LEXIS 45; October 5, 1944, Promulgated *45 Decisions will be entered under Rule 50. 1. Calvin A. Fleming, with his wife and children, moved to Louisiana from Minnesota in 1910. Shortly thereafter, he organized corporation A, acquiring its capital stock with cash which had been earned by him in Minnesota. His wife died in 1932, at which time the stock of A was held, 87 shares by Fleming and 54 shares in varying numbers by their children. In 1937 corporation B was organized to acquire, and did acquire, the lands owned by corporation A, and its stock was issued to the stockholders of A, share for share. Oil was discovered on the said lands, and thereafter in 1940 B was dissolved, its assets being distributed in kind to the stockholders in proportions in which the stock of B was held by them. Held, that the respondent in his determination of gain realized by the stockholders on the liquidation of B did not err when, in determining the fair market value of the corporate assets distributed to the said stockholders, he attributed value to the recoverable oil and gas on the above lands, in which royalty interests had been reserved; held, further, that the stock held by Calvin A. Fleming was his separate property and*46 the gain realized thereon by reason of the complete liquidation of B was his gain. 2. During the taxable years Calvin A. Fleming supported and maintained in his home two minor grandsons and has so supported and maintained them since the death of their mother, her death having occurred at the birth of the younger boy. Upon remarriage of their father, the question of their living with him was considered, but it was decided that it was for the best interest of the boys that they continue to live with their grandfather. Their father has at all times been financially able to support them, but has not done so. Held, that Calvin A. Fleming is entitled to personal exemption as the head of a family and to dependency credits for his two grandsons. 3. During 1940 Albert Fleming maintained a home, in which he, his wife, and his mother-in-law resided. The facts do not show that his mother-in-law is dependent upon him for support, nor that he actually supports her. Held, that he is entitled to personal exemption as the head of a family, but is not entitled to a dependency credit on account of his mother-in-law. John J. Finnorn, Esq., for the petitioners. Frank B. Schlosser, Esq*47 ., for the respondent. Turner, Judge. TURNER *169 The respondent determined deficiencies in income tax against the petitioners as follows: Docket No. Name Year Deficiency Penalty [3196] Albert Fleming [1940] $ 525.17 [3197] Winnie A. Fleming [1940] 6,431.63 $ 1,607.91 [3202] Lou B. Fleming [1940] 3,088.69 [3205] Calvin A. Fleming [1937] 558.38 139.60 [1938] 297.18 74.30 [1939] 216.58 54.15 [1940] 29,355.20 Three questions are presented: (1) Whether respondent correctly determined the amount of gain realized by the petitioners in liquidation of Fleming Plantation, Inc.; (2) whether respondent properly allocated among the stockholders of the corporation the gain realized by them; and (3) whether petitioners Calvin A. Fleming and Albert Fleming are entitled to certain personal exemptions and dependency credits. FINDINGS OF FACT. Certain facts have been stipulated, and are found as stipulated. Petitioners are individuals, residing at Lafitte, Louisiana. Albert *170 Fleming, Lou B. Fleming, and Calvin A. Fleming filed timely income tax returns for the year 1940 with the collector of internal revenue at New Orleans, Louisiana. Winnie A. Fleming has failed*48 to file a return for 1940. Calvin A. Fleming filed a return for the year 1937 with the collector at New Orleans, on February 6, 1941, but has failed to file returns for the years 1938 and 1939. Calvin A. Fleming is a native of Minnesota, where he married Georgie Reed, also a native of that state, on October 5, 1881. Four children, three of whom are petitioners in these proceedings, were born of this marriage, on the following dates: Winnie A. Fleming Jan. 16, 1883 Douglas R. Fleming Feb. 25, 1885 Lou B. Fleming July 14, 1886 Albert Fleming Jan. 17, 1889 Calvin Fleming and his wife and four children first went to live in Louisiana in 1910, and have resided there ever since. During the early part of 1910 Calvin Fleming entered into a contract with E. L. Page to purchase a certain tract of land situated in the Parish of Jefferson, State of Louisiana. On September 27, 1910, Fleming caused a Louisiana corporation known as the Louisiana Truck & Orange Land Co., Ltd., sometimes referred to herein as Louisiana Co., to be organized, and he paid for its capital stock a sum sufficient to acquire the above land. He then caused the vendor, Virginia B. Thorne, for whom Page was*49 acting, to transfer the land directly to the corporation. The cash so paid for the capital stock of Louisiana Co. had been earned by Calvin Fleming while a resident of Minnesota and before going to Louisiana. During the period from 1910 to 1937 the land was conveyed and reconveyed a number of times, in whole or in part, but these conveyances and reconveyances are not material to any of the issues raised herein. Georgie Reed Fleming died a resident of Louisiana, on February 28, 1932. She died intestate and her sole survivors and legal heirs are her husband and her four children. Her succession has never been opened. At the time of her death the outstanding capital stock of Louisiana Co. consisted of 141 shares, held as follows: Shares Calvin A. Fleming [87] Winnie A. Fleming [30] Lou B. Fleming [20] Albert Fleming [3] Douglas R. Fleming [1] On July 19, 1937, Fleming Plantation, Inc., sometimes referred to herein as Plantation, was organized under the laws of Louisiana, for the purpose of acquiring the land owned by Louisiana Co. There *171 had been no change in the capital stock of Louisiana Co. or in its ownership after the death of Georgie Reed Fleming, and the*50 stock of Plantation, all no par value, was issued to the stockholders of Louisiana Co. in the same proportions and numbers as the stock of Louisiana Co. had been held. This stock was paid for by the conveyance to Plantation of all of the land of which Louisiana Co. was the title owner. The land was transferred from Louisiana Co. to Plantation on October 19, 1937, at which time it was subject to an oil, gas, and mineral lease which had been granted to C. A. Kelly on January 15, 1937. The lease was subsequently assigned to the California Co., a corporation organized and existing pursuant to the laws of California. At the time of this transfer no actual drilling operations had been commenced on the land or on any property in its immediate vicinity. During the latter part of 1939 oil was discovered by California Co. on lands adjacent to the property owned by Plantation. Shortly thereafter drilling operations on Plantation's land were commenced and production was obtained. After these operations had started and production had been obtained, the stockholders of Plantation, at a special meeting held on September 28, 1940, resolved to liquidate, dissolve, and wind up the affairs of *51 the corporation, and to that end, they appointed Albert Fleming as liquidator. After giving due notice, according to law, and proof of such notice, a copy of the resolution of dissolution was filed with the Secretary of State of Louisiana on October 14, 1940. On November 16, 1940, the petitioners, together with Douglas R. Fleming, entered into a contract of copartnership by an act before a notary public, and thereby caused to be created an ordinary partnership, bearing the name of Fleming Plantations, all in accordance with the laws of Louisiana. On the same date, Albert Fleming, as liquidator of Fleming Plantation, Inc., transferred, conveyed, and turned over to the five stockholders all of the properties, real and personal, of Plantation, and these individuals, on the same day, transferred and conveyed all of the said properties to Fleming Plantations, the partnership. In the returns filed by petitioners for the year 1940 no gain was reported from the liquidation of Fleming Plantation, Inc. In the notices of deficiency respondent determined that the assets distributed in liquidation had a total fair market value of $ 297,818.74, allocated as follows: Notes receivable $ 9,982.00 Land 25,336.74 Oil and gas royalty interests 262,500.00 297,818.74 *52 *172 This total sum was allocated to petitioners in accordance with the number of shares of stock standing in their names, as follows: Value of Basis of Difference Capital assets stock gain Calvin A. Fleming 87/141 $ 183,760.50 $ 8,700 $ 175,060.50 $ 87,430.25 Winnie A. Fleming 30/141 63,365.70 3,000 60,365.70 30,182.85 Lou B. Fleming 20/141 42,243.79 2,000 40,243.79 20,121.90 Albert Fleming 3/141 6,336.57 6,336.57 6,336.57 It is stipulated that the basis of the capital stock of Albert Fleming is $ 300, and that the amount which should have been included in the deficiency notice as capital gain is $ 3,018.29. Respondent in his determination against Calvin Fleming for 1940 included in gross income a sum of $ 3,013.62 as dividends from Fleming Plantation, Inc. The parties have agreed that the correct amount of this adjustment is $ 1,859.19, and that the following amounts are includible in the gross incomes of the other petitioners for 1940 as dividends from Fleming Plantation, Inc., as follows: Lou B. Fleming $ 427.40 Winnie A. Fleming 641.10 Albert Fleming 64.11 When the properties of Fleming Plantation, Inc., were transferred*53 to the four petitioners and Douglas R. Fleming, upon its liquidation, there were outstanding and unpaid two mortgages, one in the sum of $ 5,400 and the other in the sum of $ 3,000, the payment of which was assumed by petitioners and Douglas R. Fleming, which two debts were not considered by the respondent when he set up the amount of the liquidating dividend referred to above. In his notice of deficiency to Calvin A. Fleming, respondent explained the adjustment with respect to the liquidating dividend as follows: Assets Distributed in liquidation: Fair Market Value Notes receivable $ 9,982.00 Land 25,336.74 Minerals (Producing oil and gas leases) 262,500.00 Total fair market value of assets distributed in liquidation $ 297,818.74 Your share of assets distributed in liquidation 87/141 of $ 297,818.74 $ 183,760.50 Basis of stock: 87 shares 8,700.00 Gain upon liquidation $ 175,060.50 Limited to 50 percent in accordance with the provisions of section 117 of the Internal Revenue Code (stock held more than 24 months) $ 87,530.25 The sum of $ 262,500 shown as the fair market value of "Minerals (Producing oil and gas leases)" was predicated on the recommendation*54 *173 of L. W. Petree, engineer revenue agent, dated at New Orleans, Louisiana, August 10, 1942, which reads as follows: In re: Fleming Plantations Calvin A. Fleming, Managing Partner, Lafitte, La. Year: 1940 Recommendations: DEPLETION Return Recommend Increase $ 917.50 $ 1,579.00 $ 661.50 PROFIT ON LIQUIDATION Discussion: Adjustment of depletion results from computation of depletion on barrels of oil produced, based upon the value of mineral rights received upon liquidation of Fleming Plantation, Inc., and turned in as assets of the partnership. The corporation owned fractions of the mineral rights under the Fleming Plantation, operated by The California Company, under one lease, and three units in which others participated. The field produced from three oil sands and one gas sand; wells to the various sands each being given a letter of the alphabet, A, B, C, etc., by the operator. At the time of liquidation of the corporation 6 wells were producing. About 17 wells had been drilled by May 1942, and not many more wells are anticipated. The partnership received income of $ 3,336.35 from approximately the equivalent of the full royalty interest under*55 4.5 wells during November 1940, which is approximately $ 700.00 per well month to the full royalty interest, and which is the basis of the valuation recommended, as follows: ROYALTY -- WELL INTEREST OWNED Expected Expected Unit or lease Basic Date Future Total A4 and C4 .4 (1 well) .4 (1 well) .8 (2 wells) C-13 .8 (1 well) .8 (1 well) 1.6 (2 wells) B-2 .4 (1 well) .4 (1 well) Plantation Lse 2.9 (3 wells) 6.9 (7 wells) 9.8 (10 wells) Total 4.5 8.1 12.6 1 VALUATION AND DEPLETION November income $ 3,336.35. Full royalty wells 4.5 wells. Approximate income per royalty well $ 700 per month. Value per royalty well at 30-month pay out $ 21,000.00. Total expected royalty wells 12.5 wells. Total estimated value $ 262,500.00. Estimated royalty barrels 525,000 bbls. Unit per royalty barrel 50 Cents. Barrels produced, 1940, 3158 bbls. Depletion allowable, 1940 $ 1,579.00. Recommended by (s.) L. W. Petree, Engineer Revenue Agent. *174 The parties agree that Petree is duly qualified to testify with respect to the value of oil and gas properties, and that if*56 he had been present in court as a witness, he would have testified to the value which he has set forth in the above report. During the period from 1937 through 1940, Calvin Fleming lived in his home on the plantation, with his two daughters, Winnie A. and Lou B. Fleming, and his two grandsons. The daughters were unmarried, but were not dependent upon their father. Winnie looked after the housekeeping. Lou is a doctor, and practiced her profession in the city during a part of the period in question. When she lived with her father she was independent, but she also helped supervise the housekeeping. Calvin Fleming paid all the household bills. The two grandsons are the sons of Douglas R. Fleming. Their mother died at the birth of the younger boy, at which time Calvin Fleming and his wife took the boys to live with them in their home. Douglas Fleming remarried, and at the time considered the taking of his sons into his home, which was located on the same plantation. After some discussion, however, it was agreed by all that it was best for the two boys to remain in the home of their grandfather. Douglas Fleming was capable at all times of providing for all of his children, including*57 his four children by the present marriage. In 1937 the two grandsons were 10 years and 13 years old, respectively. Albert Fleming lived on the same plantation, but in a different home from that of his father and brother. He is married and his mother-in-law lives with him and his wife. Respondent determined that during 1937, 1938, 1939, and 1940 Calvin Fleming was only entitled to the personal exemption allowed a single person without dependents. He also determined that for 1940 Albert Fleming was only entitled to the personal exemption of a single person without dependents. OPINION. The question common to all petitioners is what gain, if any, was realized by them as stockholders upon the complete liquidation of Fleming Plantation, Inc., in 1940. The law of the case has been very aptly summarized by the United States Circuit Court of Appeals for the Fifth Circuit in Boudreau v. Commissioner, 134 Fed. (2d) 360, affirming 45 B. T. A. 390, as follows: "Under the express provisions of the applicable statute, when there is complete liquidation of a corporation, stockholders are accountable for the difference between the cost*58 basis of their stock and the fair market value of the property received in exchange for it." Secs. 111, 112 (a), and 115 (c), I. R. C. *175 The assets of Plantation were distributed in kind and consisted of notes and land on which there were producing oil wells. The respondent determined that the total fair market value of the assets distributed in liquidation by Plantation was $ 297,818.74. He valued the notes receivable at $ 9,982; the land, exclusive of minerals, at $ 25,336.74; and "Minerals (Producing oil and gas leases)" at $ 262,500. The petitioners make no contention that the notes receivable and the land, exclusive of minerals, were not properly and fairly valued. They argue, however, that as a matter of law no amount in respect of oil and gas is to be included in the value of the corporate assets, the reasoning in part, at least, being to the effect that such value does not represent realized gain, but unrealized appreciation, and that the respondent's determination of fair market value, in so far as it is based on oil and gas in place, is a nullity because based on estimates, assumptions, and speculations. As noted above, the law of the case requires no discussion, *59 for under section 115 (c), supra, the exchange by the petitioners of their Plantation stock for the assets of that corporation, in complete liquidation, was a gain-realizing transaction, and under section 111, supra, the gain realized was the excess of the fair market value of the Plantation assets (notes and oil-bearing property) over the basis of Plantation stock in the hands of the petitioners, all of which gain is recognizable as taxable gain under section 112 (a), supra. There is therefore no merit in the argument that as a matter of law the inclusion in taxable income of the excess of the fair market value of the Plantation assets over the basis of the Plantation stock is a taxing of the petitioners on unrealized appreciation. The question here is one of fact, and, since the parties are agreed on the basis of the Plantation stock, the only item open to dispute is the fair market value of the Plantation assets when received by the petitioners in exchange for their Plantation stock, and in that connection the only apparent question is whether, in arriving at the fair market value of those assets, consideration should be given to oil and gas in place. At the time*60 of the liquidation of Plantation there were several producing oil wells on the land and other wells had been planned or were being drilled. To say, under such circumstances, that the existence of oil on the premises and the prospective production thereof were not elements of value to be considered in arriving at the fair market value of the property distributed by Plantation to its stockholders in liquidation, would be to turn one's back on the realities of the situation. We know of no formula or method whereby fair market value may be determined with mathematical exactness; it requires the exercise of judgment upon the evidentiary facts at hand. The respondent has so exercised his judgment and has arrived at a *176 value for the assets distributed by Plantation to the petitioners in complete liquidation, and the fact that, in exercising his judgment and in arriving at his conclusion of fair market value, he has seen fit to consider separately the value of the land, exclusive of minerals, and the value of the oil and gas in place, is not an indication that his ultimate determination of value is in error. The petitioners have made no showing that the fair market value of the*61 land, including the oil and gas in place, is different from or less than the total of the amounts shown by the respondent in his determination. Theirs, rather, is a complaint as to the respondent's method of valuation. With respect to the gain realized by the petitioners from the liquidation of Fleming Plantation, Inc., the respondent is accordingly sustained. Burnet v. Logan, 283 U.S. 404, and Columbia Oil & Gas Co. v. Commissioner, 118 Fed. (2d) 459, relied upon by the petitioners, are not in point. In the alternative, it is the claim of the petitioners that the 87 shares of stock of the Louisiana Co. were community property and that one-half thereof, or 43 1/2 shares, were inherited by the children of Calvin Fleming and Georgie Reed Fleming upon the death of the latter, Calvin Fleming, with respect to the said shares, being entitled only to the usufruct, and that under such circumstances the gain realized in respect of the 43 1/2 shares of Plantation stock upon liquidation of that corporation was the gain of the children, not of Calvin Fleming. Our first inquiry, of course, is whether the shares of the Louisiana*62 Co. were community shares. The petitioners rest their claim that the shares were community shares upon the provisions of articles 2399 to 2402 of the Revised Civil Code of Louisiana. Article 2399 provides that "Every marriage contracted in this State, superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary." In article 2401, it is provided that "A marriage, contracted out of this State, between persons who afterwards come here to live, is also subjected to community of acquets, with respect to such property as is acquired after their arrival." In article 2402, it is provided that the partnership or community referred to in preceding articles "consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of all the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when*63 the purchase is made is alone attended to, and not the person who made the purchase. * * *" The petitioners point to the fact that the stock of the Louisiana Co. was purchased by Calvin Fleming after he and his wife and their *177 children had come from Minnesota to Louisiana to live, and argue that under the plain wording of the above articles the stock of the Louisiana Co. still held by Calvin Fleming on the date his wife died was community property. They cite and particularly rely upon the case of Succession of Dill, 155 La. 47; 98 So. 752. Dill and his wife had moved from New York, where they were married, to Texas, and later Dill, but not his wife, moved to Louisiana, where he acquired property. It was held that the property so acquired was community property. The provisions of the Louisiana Civil Code above referred to are very broadly stated, and, standing alone, seem to support the claim of the petitioners here. It is to be noted, however, that no mention is made either by the petitioners on brief, or by the court in the above case, of article 2334 of the code, which reads in part as follows: The property of*64 married persons is divided into separate and common property. Separate property is that which either party brings into the marriage, or acquired during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly. * * * * Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared. * * * If, as the petitioners contend, articles 2399 to 2402, supra, unqualifiedly provide that all property purchased or acquired "in any other similar way" in Louisiana by either a husband or wife during marriage is community property, we see no escape from the conclusion that those articles are in direct conflict with article 2334. Examination of the decided cases, however, discloses that the articles relied on by the petitioners state a general proposition to which the provisions of article 2334, relating to separate property, provide an exception. See Succession of Ipser, 180 La. 656; 157 So. 380; Smith v. Gloyd, 182 La. 770; 162 So. 617; Fortier v. Barry, 111 La. 776;*65 35 So. 900; and Schwab v. Hava, 154 La. 922; 98 So. 420. Where property has been acquired during marriage, it is incumbent upon a spouse claiming such property as separate property, or one claiming as successor of such spouse, to prove and establish the facts necessary to show that the property is the separate property of such spouse, not community property, and in some instances, at least, it would seem that stricter proof is required of a husband than of a wife. It has been held, for instance, in the case of immovables that even though the particular property has been acquired with the separate funds of the husband, the deed must recite that the property so acquired is acquired as the husband's separate property. Ramsey v. Beck, 151 La. 190; 91 So. 674. In other cases, it has been held that the property was community property, but a claim against the said property has been allowed to the spouse whose separate property was used in its acquisition. Kittredge v. Grau, *178 158 La. 154; 103 So. 723;*66 Denegre v. Denegre, 30 La. Ann. 275; Moore v. Stancel, 36 La. Ann. 819; Durham v. Williams, 32 La. Ann. 162; Succession of Foreman, 38 La. Ann. 700. In the instant case, the cash with which the capital stock of Louisiana was acquired had been earned by Calvin Fleming while a resident of Minnesota and before coming to Louisiana. At the time of his wife's death in 1932, he still owned and held 87 of the 141 shares of Louisiana stock then outstanding. On July 19, 1937, he exchanged his shares of Louisiana stock for the same number and proportion of shares in Fleming Plantation, Inc. The petitioners have stipulated with the respondent that there was no change in the ownership of the shares of Louisiana Co. from the date of the death of Georgie Reed Fleming, wife of Calvin Fleming, on February 28, 1932, to the date of the organization of Fleming Plantation, Inc., and its succession to the Louisiana Co. In 1940, after oil was discovered on the properties held by Fleming Plantation, Inc., that corporation was dissolved and the assets were distributed*67 to the stockholders in proportion to their stockholdings in the corporation. At or about the same time the individuals formerly the stockholders of Plantation joined in a transfer of the properties to a partnership, the interests in which were the same as those previously held in the corporation. The transfers of the assets first by Albert Fleming, as liquidator of Fleming Plantation, Inc., to the stockholders, and then by those individuals to Fleming Plantations, the partnership, were made by formal documents. Those documents were signed by petitioner Calvin Fleming and his four children, the stockholders of Fleming Plantation, Inc., and of Fleming Plantations, the partnership, and were acknowledged before a notary public. In each of those instruments it was recited, without qualification, that Calvin Fleming was the owner of the 87 shares of stock in Fleming Plantation, Inc., and, after liquidation of that corporation, of the same proportionate share of the assets transferred to the partnership. The conduct of the petitioners and the records made by them support the respondent's contention that the shares of stock in Louisiana Co., having been acquired with the separate property*68 of Calvin Fleming, were established as his separate property and thereafter continued to be his separate property. Any presumption to the contrary which may have arisen at the time the Louisiana stock was purchased is refuted by the facts of record. We accordingly conclude that the alternative contention is without merit. The remaining issue may be divided into two parts: (1) Whether Calvin Fleming is entitled to a credit of personal exemption as the head of a family and dependency credits for the support of his two grandsons; and (2) whether Albert Fleming is entitled to a personal *179 exemption as the head of a family and a dependency credit for the support of his mother-in-law. (1) At the time that Calvin Fleming and his wife took the two grandsons into their home, Calvin was the head of a family. He was not legally obligated to support and maintain his two grandchildren, but he undertook to do so. After the death of his wife, he continued to run his home and to care for the grandsons. At the time the father of the boys remarried it was considered by all to be to the best interest of the boys for them to remain in the home of their grandfather. Calvin Fleming, having*69 assumed the care and support of the grandchildren, was morally obligated to provide for such care and support. The boys were within the relationship required by the statute, and Calvin Fleming is under a moral obligation to perform the duty he has assumed. This meets the statutory requirements, and he is entitled to the personal exemption as the head of a family and to the two dependency credits. (2) The facts show that Albert Fleming lives in his own household, with his wife, by reason of which he is entitled to the personal exemption provided by statute in the case of a married man living with his wife. The facts do not show that his mother-in-law is dependent upon him for support, nor that he is actually supporting her. Therefore, he is not entitled to such dependency credit. Decisions will be entered under Rule 50. Footnotes 1. Based upon assumption of 15 wells upon completion of drilling.↩