Thrash Lease Trust v. Commissioner

THRASH LEASE TRUST, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Thrash Lease Trust v. Commissioner Docket No. 82904. United States Board of Tax Appeals 36 B.T.A. 444; 1937 BTA LEXIS 712; August 10, 1937, Promulgated *712 An organization of individuals holding transferable shares in a common business enterprise managed by one or two of their number who distributed the profits proportionately with interests, held an association. A. Calder Mackay, Esq., for the petitioner. Edward A. Tonjes, Esq., for the respondent. STERNHAGEN *445 The Commissioner determined deficiencies of $1,548.44 and $1,398.20 in petitioner's income taxes for the fiscal years ended July 31, 1932 and 1933, respectively. Petitioner assails the determination that it is taxable as an association. FINDINGS OF FACT. On October 17, 1930, a tract of 12 acres in Smith County, Texas, was leased by J. E. Thrash to J. S. Rushing for three years and as long thereafter as oil or gas should be produced, the lessor to receive one-eighth of the oil produced and payment of the market value of one-eighth of the gas. On May 25, 1931, this lease was assigned by Rushing to "Gordon Macmillan, Trustee, his heirs, successors and assigns" for $48,000, payable out of seven thirty-seconds of the first oil or gas produced and marketed from the property. Herbert R. Macmillan, Gordon's father, was at this*713 time acquiring oil leases and distinguishing them by various designations, and it was at his direction that the aforesaid name of the assignee was used. Herbert R. Macmillan, in June 1931, put up between $2,500 and $3,000 for the drilling of a well, and sent Gordon to Texas to take charge of operations. Gordon received a monthly salary and had an interest in the venture. Oil was struck in commercial quantities on July 31, 1931. Percentage interests were assigned to many persons, sometimes of interests in the oil and gas and sometimes of interests in the lease. The total of the former was 24+ percent, and of the latter, 42+ percent. For such interests assigned before production began the aggregate consideration was $8,000, and for those later assigned the aggregate consideration was $18,000. There were some variations in the terms of the different assignments of interests. All were transferable, and some have been transferred. Distributions have been made among the percentage assignees, after the 12 1/2 percent went to the original lessor, the remaining 20+ percent being equally divided between Herbert R. and Gordon Macmillan. No meeting of the owners of percentage interests*714 has ever occurred. Herbert R. Macmillan directed the business from Los Angeles and Gordon Macmillan directed the operation of the well and distributed the profits among the percentage owners, after paying expenses out of the proceeds of sales of interests and of the oil. For the fiscal year ended July 31, 1932, the net income of the venture was $13,044.03, and for the fiscal year ended July 31, 1933, the net income was $10,168.72. Fiduciary income tax returns were filed in the name of Gordon Macmillan, trustee. OPINION. STERNHAGEN: After the filing of fiduciary returns as a trust, the Commissioner determined that the petitioner was an association *446 within section 1111(a)(2) of the Revenue Act of 1932, taxable as if it were a corporation. The petition is filed in the name of Thrash Lease Trust, the name to which the deficiency notice is addressed, and alleges that it received the deficiency notice; files the petition "to protect its rights", but "does not admit that it is a taxable entity"; that Gordon Macmillan acquired the Thrash lease; that "petitioner at no time has had any form of organization", at no time has been engaged in business as an association. All*715 of these allegations are denied. It is difficult now to know what the position is as to the identity or nature of the taxpayer under the revenue act. Not only is the existence of petitioner seemingly denied, but also the fiduciary returns are repudiated. Both Herbert R. Macmillan, while a witness, and petitioner's counsel assert that there was no trust; and from this petitioner's counsel argues that there is no foundation for recognizing a statutory "association." Who is to be regarded as the taxpayer in respect of the undisputed income or what his or its character is under the tax law, the petitioner does not say. It is suggested that a tenancy in common existed and its taxable character as a partnership is intimated. Although, from the evidence, the organization is amorphous indeed, there is little doubt that there was an organization of individuals holding transferable shares in a common business enterprise managed by one or two of their number, who distributed the profits proportionately with interests. This is enough to give prima facie substance to the Commissioner's treatment of it as an association, *716 ; ; ; ; , and to require an affirmative showing by the petitioner of attributes and circumstances indicating a different taxable character under the revenue statute. No such showing is in this record, and the determination must stand. Judgment will be entered for the respondent.