Evergreen Cemetery Ass'n v. Commissioner

EVERGREEN CEMETERY ASSOCIATION OF CHICAGO, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Evergreen Cemetery Ass'n v. Commissioner Docket No. 37307. United States Board of Tax Appeals 21 B.T.A. 1194; 1931 BTA LEXIS 2237; January 15, 1931, Promulgated *2237 The petitioner owned and operated a cemetery and sold lots therein under agreements with purchasers thereof that a part of the purchase price of each lot would be set aside as a trust fund for the perpetual care of said lots and cemetery. Held, such amounts constitute a trust fund and may not be included in gross income of the petitioner and therefore are not taxable income to it. Jacob Rothschild for the petitioner. Eugene Harpole, Esq., for the respondent. SEAWELL *1194 The Commissioner determined a deficiency in income tax for 1923 in the amount of $2,148.18, due to his adding to the net taxable income of petitioner as shown on its return the sum of $17,185.50, which was part of the 1923 sale price of lots in its cemetery and, pursuant to agreements with lot purchasers, was set aside and turned over to the trustees of the Evergreen Cemetery Perpetual Care Trust Fund for the benefit of the lot owners in the Evergreen Cemetery. The petitioner contends that said amount may not be included in its gross income and therefore is not taxable to it. FINDINGS OF FACT. The petitioner is an Illinois corporation, operating a cemetery on the*2238 south side of Chicago, with its principal office in said city. The petitioner had contracts with purchasers of lots in its cemetery whereby a so-called perpetual care or maintenance trust fund *1195 was established for use in keeping said lots and the cemetery grounds in proper repair and condition. The board of directors of the petitioner decided at the end of each year how much from the sale of lots would be set aside for the said care or maintenance fund for the following year, basing its action on the cost of maintenance and the number of square feet sold. At the beginning of operations 10 per cent was set aside. In 1923 the board of directors set aside 30 cents a square foot for said fund. The reserve or sum set aside for the perpetual care fund in 1923 is the disputed income-tax item amounting to $17,185.50. There were three trustees for the said perpetual care trust fund, Jacob Rothschild and two other individuals. Rothschild was the treasurer of the fund. In the beginning of their operations as such trustees they made some small temporary loans from said fund to the petitioner, of which Rothschild was also treasurer. Later said trustees invested said*2239 fund in real estate assets and they are now so invested. While operating said cemetery and during 1923, the petitioner had advertising matter in the form of circulars or folders in which, among other things, it was stated: "Evergreen Cemetery is all under perpetual care. * * * A liberal amount is set aside in trust from each sale of a lot for that purpose. * * * Every lot sold is under perpetual care. The Company sets aside a special trust fund, the interest on which will pay for the permanent future care of the lots, thus avoiding the necessity of any lot owner or his family or descendants spending any money, or devoting any time or attention to any such purpose." The form of contract used in purchase of a lot in the cemetery provides for the deposit of a part of the purchase price "into the Perpetual Care Fund" to be held "forever as a Trust Fund, the income of said fund as earned to become the property of the Evergreen Cemetery Association and to be used for the perpetual care of the above mentioned lot and for the general care and maintenance of cemetery, as shown in the Regulations for perpetual Care of Evergreen Cemetery and the lots and graves therein." The form of*2240 deed used by the petitioner in conveying lots to purchasers warranted title to lots so conveyed, "including perpetual care." It was recited in the deed that said lots were to be held subject to "the conditions and limitations specified in the Rules and Regulations of said Cemetery Association" and also "to any other general rules and regulations and to amendments to or changes therein which may be adopted by said Association at any time hereafter," and such rules and regulations were made a part of the conveyance and were printed on the deed. *1196 The rules and regulations state that it is the desire of the directors to leave the improvement of lots, as far as possible, to the taste of the owners, while at the same time reserving the right to control and superintend what was done, so as to preserve the general appearance of the grounds and promote the general object of the cemetery. OPINION. SEAWELL: Chapter 21, paragraph 51, section 4, of Cahill's Illinois Revised Statutes, relative to cemetery associations, in force in 1923, reads as follows: P51. Trust fund.] § 4. The board of directors of such cemetery society, or cemetery association, or the trustees of any*2241 public graveyard, may set apart such portion as they see fit of the moneys received from the sale of the lots in such cemetery or graveyard, which sums shall be kept separate from all other assets as an especial trust fund, and they shall keep the same invested in safe interest or income paying securities, for the purpose of keeping said cemetery or graveyard, and the lots therein, permanently in good order and repair, and the interest or income derived from such trust fund shall be applied only to that purpose, and shall not be diverted from such use. It is seen from the foregoing that the Illinois statute provides that the board of directors of a cemetery association may set apart such portion as they see fit of moneys received from the sale of lots in its cemetery, the said moneys to be treated as a trust fund, etc., as was done in the instant case. In behalf of the petitioner, it is insisted that the evidence in this case establishes facts which bring it within the principle enunciated in , and should be controlled thereby. It seems clear that a trust fund of the character and for the purpose*2242 heretofore indicated and insisted upon by the petitioner was created, in which purchasers of lots in the cemetery had such an interest as might be protected and enforced in a court of equity. While the evidence is not as full and satisfactory as it might have been made had resolutions passed by the board of directors, providing for the creation of said perpetual care fund, been put in evidence, it is, nevertheless, in our opinion, sufficient to overcome the presumption of the correctness of the respondent's determination and establish facts which bring the case within the principle of decisions in ;; ; ; and . As was said in : "It needs no particular form of words to create a trust, so there be reasonable certainty as to *1197 the property, the objects, *2243 and the beneficiaries. * * *." The representations made by the petitioner in its advertising matter, contracts and deeds as to the "perpetual care fund," taken in connection with the positive and uncontradicted testimony of the treasurer of the fund touching the same, in our opinion, establish the existence and character of such a trust fund, and the amount thereof set aside as a reserve in 1923, $17,185.50, and now in controversy, constitutes no part of petitioner's gross income for said year and is not taxable income to it and the respondent committed error in treating it as taxable income to petitioner. Reviewed by the Board. Judgment of no deficiency will be entered. TRAMMELL and PHILLIPS concur in the result only. STERNHAGEN and MURDOCK dissent.