Sconset Oil Co. v. Commissioner

SCONSET OIL COMPANY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Sconset Oil Co. v. Commissioner Docket No. 40527. United States Board of Tax Appeals 26 B.T.A. 419; 1932 BTA LEXIS 1307; June 15, 1932, Promulgated *1307 1. The basis for computing profit from the sale of assets acquired in exchange for all of petitioner's capital stock is the cost of such property to the prior owner. Section 204(a)(8) of the Revenue Act of 1926. 2. Validity of section 204(a)(8) of the Revenue Act of 1926 upheld. Robert D. Charlton, Esq., for the petitioner. T. M. Mather, Esq., for the respondent. LANSDON *419 The respondent has asserted a deficiency in income tax for the calendar year 1925 in the amount of $2,089.17, which arises from his determination that the basis for computing profit on the sale of certain corporate assets acquired in exchange for stock is the cost of such assets to the prior owner. FINDINGS OF FACT. The petitioner is a Texas corporation, organized on June 8, 1925, with authorized capital stock of 50,000 shares having a par value of $1 per share. On or about the date of incorporation all of the authorized capital stock except two qualifying shares was issued to George F. Oberge in exchange for a gasoline contract, certain oil and gas leaseholds and an oil and gas well. The gasoline contract had cost Oberge nothing; the leaseholds and the oil*1308 and gas well had cost him $1,400 and $7,000, respectively, which included cost of additions or prorations thereof. In the latter part of 1925 the petitioner sold certain of the property acquired from Oberge for a total consideration of $35,000. Of such amount $20,000 was received for petitioner's interest in the oil and gas well, the gasoline contract and approximately one-half of the oil and gas leaseholds. The remaining $15,000 of the consideration received was for property described as "oil well and lease." On its income-tax return for 1925 the petitioner reported a loss of $5,140 on the property sold for $15,000 and a profit of $2,738.22 on the property sold for $20,000, which resulted in a reported loss from the whole transaction of $2,401.78. Upon audit of the return the respondent determined a profit from the whole transaction of $17,344.01 by attributing a cost of $12,298.85 to the property sold for $15,000 and a cost of $5,357.14 to that sold for $20,000. The petitioner's net income was thus increased by *420 $19,745.79 representing elimination of the loss reported and addition of the profit determined by the respondent. OPINION. LANSDON: The only controversy*1309 in this proceeding relates to the basis for computing profit from the sale of assets acquired by the petitioner from an individual in exchange for all of its capital stock. The respondent has determined that the basis is to be determined under section 204(a)(8) of the Revenue Act of 1926 and that it is cost of the property to the transferor. The petitioner contends that the basis is cost of the assets, which is the fair market value of the stock paid therefor. Section 204(a)(8) of the Revenue Act of 1926 1 provides that where property is acquired by a corporation for stock in connection with a transaction described in paragraph (4) of subsection (b) of section 203 2 the basis for computing profit or loss shall be the same as it would have been in the hands of the transferor. We have held repeatedly that section 204(a)(8) is applicable to a situation such as that presented here. Perthur Holding Co.,23 B.T.A. 1128; Paradox Land & Transport Co.,23 B.T.A. 1228; Burlington Gazette Co.,21 B.T.A. 156; and *1310 Haas Building Co.,22 B.T.A. 528. Upon authority of the above decisions the respondent's determination is approved. The petitioner alleges that section 204(a)(8) of the Revenue Act of 1926 is unconstitutional as violating the Fifth Amendment. The similar section of the Revenue Act of 1924 has been before the Federal courts on at least two occasions and its constitutionality*1311 has been upheld. Newman, Saunders & Co. v. United States,68 Ct.Cls. 641; 36 Fed.(2d) 1009; certiorari denied, 281 U.S. 760; and Osburn California Corporation v. Welch, 39 Fed.(2d) 41; certiorari denied, 282 U.S. 850. Upon authority of those decisisons we uphold the validity of the section questioned. Decision will be entered for the respondent. Footnotes 1. SEC. 204. (a) The basis for determining the gain or loss from the sale or other disposition of property acquired after February 28, 1913, shall be the cost of such property; except that - * * * (8) If the property * * * was acquired after December 31, 1920, by a corporation by the issuance of its stock or securities in connection with a transaction described in paragraph (4) of subdivision (b) of section 203 * * * then the basis shall be the same as it would be in the hands of the transferor, * * * ↩ 2. SEC. 203. (b) (4) No gain or loss shall be recognized if property is transferred to a corporation by one or more persons solely in exchange for stock or securities in such corporation, and immediately after the exchange such person or persons are in control of the corporation; * * * ↩