Quealy, Judge:
The Commissioner determined the following deficiencies in the petitioners’ Federal income taxes:
Docket No. Year Deficiency
8683-74 .1968 $334.00
1969 667.00
8684-74 .1968 1,709.49
1969 3,488.97
By an amendment to his answer, the Commissioner claimed increased deficiencies as follows:
Docket No. Year Deficiency
8683-74 .1968 $714.00
1969 1,429.00
8684-74 .1968 2,128.50
1969 4,349.98
In his amendment to the answer in docket No. 8684-74, the Commissioner claimed, in the alternative, increased deficiencies of $13,062.26 for 1968 and $3,637.36 for 1969.
The issues for decision are: (1) The amount to be treated as the investment in the contract by the individual petitioners in determining the taxability under section 72, I.R.C. 1954,1 of an annuity received by them in exchange for certain property; (2) the manner of reporting the gain realized by the individual petitioners on the transfer of such property; and (3) the cost basis and useful lives of the properties received by the corporate petitioner for the purpose of computing its depreciation deductions.
FINDINGS OF FACT
Some of the facts have been stipulated, and those facts are so found.
The petitioner in docket No. 8683-74 is 212 Corporation (212 Corp.), which had its principal place of business in Erie, Pa., at the time it filed its petition in this case. It filed its corporate Federal income tax returns for 1968 and 1969 with the Philadelphia Service Center.
The petition in docket No. 8684-74 was filed by Arthur F. Schultz and Madeline M. Schultz, his wife, who, on the date of the filing of such petition, resided in Erie, Pa. They filed their joint Federal income tax returns for 1968 and 1969 with the Philadelphia Service Center. After the filing of the petition, Mr. Schultz died; Robert C. Schultz and Harold H. Schultz were appointed executors of his estate, and the estate was substituted as a party in this case.
Prior to June 30, 1968, Arthur and Madeline Schultz owned the property commonly known as 212 East 18th Street, Erie, Pa. (the 18th Street property), consisting of several parcels of land, a building, and a fenced parking area. They also owned the property known as 3831 West 12th Street, Erie, Pa. (the 12th Street property), consisting of a lot and building. As of June 30, 1968, their adjusted basis in such properties was $82,520.57. By an “Agreement of Sale and Annuity Contract” dated June 30, 1968, Mr. and Mrs. Schultz agreed to transfer such properties to the 212 Corp. in exchange for such corporation’s promise to pay to them jointly, or to the survivor of them, the sum of $18,243.74 per year. Mr. Schultz was born on April 3,1895, and Mrs. Schultz was born on August 20,1895; for actuarial purposes, both were 73 years of age on July 1,1968.
On July 1,1968, Mr. and Mrs. Schultz conveyed the properties to 212 Corp. On the same date, 212 Corp. leased the properties to the Arthur F. Schultz Co. (Schultz Co.). The lease for the 18th Street property was for a term of 5 years, commencing on July 1, 1968, at a yearly rental of $25,500, payable in installments of $2,125 per month. The lease for the 12th Street property also was for a period of 5 years, commencing July 1, 1968, at an annual rental of $2,400, payable in monthly installments of $200. Schultz Co. was granted three independent 5-year options to renew each lease at the expiration of the preceding term. Under the terms of both leases, Schultz Co. was responsible for all maintenance and repairs, both interior and exterior.
Prior to and during 1968, Schultz Co. was wholly owned by Mr. Schultz, who was the president and principal operating executive of Schultz Co. during such period. Schultz Co. was incorporated in 1946 and, since at least the 1960’s, has been engaged in the business of retail sales of appliances and furniture and commercial sales of supplies and equipment to restaurants, hotels, and the like. From 1946 to 1970, the principal business office, warehouse, and largest retail outlet of Schultz Co. was located at the 18th Street property. From 1954 to 1972, one of the retail appliance store outlets was located at the 12th Street property. Prior to 1968, Schultz Co. had leased the properties from Mr. and Mrs. Schultz. Schultz Co. paid a gross yearly rental of $25,500 for the 18th Street property and a gross yearly rental of $2,400 for the 12th Street property under the terms of its leases with Mr. and Mrs. Schultz. However, under the terms of such leases, the lessor was responsible for repairs and maintenance.
The 212 Corp. was formed in 1968 and was owned by Robert C. Schultz (Robert) and Harold H. Schultz (Harold), the sons of Mr. and Mrs. Schultz, and Jerome H. Blakeslee (Jerome), who was the son-in-law of Mr. and Mrs. Schultz. The first meeting of 212 Corp. was held on July 15, 1968. At such meeting, Robert was elected president, Jerome was elected vice president, and Harold was elected secretary and treasurer of the corporation. Also at such meeting, the purchase of the 18th Street and 12th Street properties from Mr. and Mrs. Schultz was approved. It was agreed to pay for such properties with a joint survivor annuity payable to Mr. and Mrs. Schultz. The leases to the Schultz Co. also were approved. In 1968 and 1969, the three owners of 212 Corp. were the officers of the corporation, but received no compensation. There were no other employees.
The same attorney and the same certified public accountant had represented Mr. and Mrs. Schultz from at least 1960 through 1968. That attorney and CPA represented both Mr. and Mrs. Schultz and 212 Corp. in the negotiations relating to and consummation of: the transfer of the properties from Mr. and Mrs. Schultz to 212 Corp. by deed dated July 1, 1968; the lease agreement between 212 Corp. as lessor and Schultz Co. as lessee; and the annuity contract between 212 Corp. and Mr. and Mrs. Schultz. That attorney and CPA also represented Robert, Harold, and Jerome in the formation and incorporation of 212 Corp.
The transactions involved in this case were all part of a plan proposed by the CPA in order to effect income and estate tax plans for Mr. and Mrs. Schultz. The original plan submitted by the CPA to Mr. Schultz, on January 16,1968, proposed a transfer of only the 18th Street property for a consideration of $200,000. Mr. Schultz had in mind a price of $200,000 for the property because he had received an offer to purchase such property at such price from the Prudential Insurance Co. in 1952.
In 1952, the area surrounding the 18th Street property was a good business neighborhood. However, from 1952 through 1968, such neighborhood had declined drastically and had become a ghetto area, making it necessary to institute certain security measures to protect both the customers of Schultz Co. and the property itself. Yet, despite the neighborhood, Schultz Co. was able to continue to operate successfully at such location. Moreover, in 1968, there were plans to restore and rehabilitate the area under the model cities plan. The building at 18th Street was four stories high. It was constructed in 1903; it had originally been used for manufacturing, but had been converted by Schultz Co. to a combination warehouse and commercial and retail outlet. The building had been well maintained and was in good condition.
The discussions leading to the transfer of the properties began in March of 1968, when Mr. Schultz met with Robert, Harold, and Jerome. At such meeting, he stated that he was thinking of selling the 18th Street property and asked the others if they were interested in buying it. Mr. Schultz stated that he had a plan whereby the property would be transferred to a separate corporation to be owned by Robert, Harold, and Jerome. According to the plan, Schultz Co. would rent the property from such corporation, and the corporation would use the rentals to pay Mr. Schultz for the property and to pay taxes and insurance. However, at such time, Mr. Schultz did not give the others a copy of the plan proposed by his CPA.2 Mr. Schultz told Robert, Harold, and Jerome that if they were interested in purchasing the property, they should meet with his attorney, who would explain the details of the plan.
Early in April 1968, Robert, Harold, and Jerome met with the attorney, who outlined to them the details of the plan. They were interested in the plan, but believed that the 12th Street property also should be conveyed to them, so that Schultz Co. would be renting from one landlord. They were particularly interested in the 12th Street property because of its low price; Robert believed his father had paid approximately $22,000 for the property.3
The 12th Street property was located in the midst of an active and growing business section on the western border of Erie, Pa., close to the airport, other large shopping centers, schools, churches, and recreation areas. A one-story concrete block building had been constructed on the property in 1952. The location was a commercially desirable one, and the building was suitable for many retail uses.
Mr. Schultz was agreeable to including a transfer of the 12th Street property as part of the plan, and a selling price of $25,000 was established for such property. In June of 1968, Robert, Harold, and Jerome held a second meeting with the attorney to discuss the plan as amended to include both properties.
At the time these negotiations transpired, Robert, Harold, and Jerome were employed by Schultz Co. Robert and Harold had worked almost their entire lives for Schultz Co.; each had begun his employment there at the age of 11. Jerome had commenced his employment with Schultz Co. in February of 1947. All three held executive positions with Schultz Co., but on July 1, 1968, only Robert and Harold were officers; Robert was vice president and Harold was secretary.4
Robert, Harold, and Jerome were educated, intelligent, and experienced businessmen who entered into the transaction with Mr. Schultz after having considered and discussed the plan offered to them. They were not ordered or influenced by Mr. Schultz, but acted of their own volition. However, Robert, Harold, and Jerome had very little to do with the drafting, approval, and implementation of the plan. Moreover, at least with respect to the 18th Street property, Robert, Harold, and Jerome had no input into determining the selling price. There were no negotiations concerning this price; rather, the $200,000 price was set by Mr. Schultz.
The rents to be paid by Schultz Co. were calculated and expected to be sufficient to fund the annuity. In fact, Schultz Co. assumed the responsibility for maintenance and repairs so that, after deductions for insurance, income and real estate taxes, and certain miscellaneous expenditures, the rental payments would be sufficient to cover the annuity payments. The 212 Corp. had no source of income other than the rents from the properties transferred to it. The only assets of 212 Corp. during 1968 and 1969 consisted of some $4,000 in cash, some $500 in capitalized organizational expenses, and the properties transferred to it by Mr. and Mrs. Schultz. Robert, Harold, and Jerome probably would have agreed to pay as much as $800,000 for the properties so long as the annuity could have been paid from the rentals on them.
In May of 1968, Mr. Schultz retained Richard W. Ruth and William G. Eckert, real estate appraisers, to make appraisals of the 18th Street property and the 12th Street property. The CPA recommended that such appraisals be obtained in order to substantiate the values of $200,000 for the 18th Street property and $25,000 for the 12th Street property. In his written report, Mr. Ruth expressed the opinion that the fair market value of the 18th Street property was $95,000, and that the fair market value of the 12th Street property was $22,000, yielding a total for the two properties of $117,000. Mr. Eckert also prepared a written report. In Mr. Eckert’s opinion, the fair market value of the 18th Street property was $110,000, and the fair market value of the 12th Street property was $22,000, for a total of $132,000. However, neither appraiser was aware of the existence or terms of the leases between Schultz Co. and 212 Corp. with respect to the properties. Each appraiser assumed that Schultz Co. would vacate the properties and, therefore, valued them as vacant properties, without a known tenant for a known period of years. Robert, Harold, and Jerome obtained no appraisals of the properties prior to entering into the contract of sale and annuity agreement and were not shown the appraisal reports obtained by Mr. Schultz.
The agreement of sale and annuity contract entered into by Mr. and Mrs. Schultz and 212 Corp. contained the following provision with respect to the purchase price of the properties:
6. 212 agrees to pay Schultz for said property the total sum of $225,000, which total sum is attributable to the respective properties included in this sale as follows:
(a) For all the property commonly known as 212 East 18th Street, the sum of $200,000.
(b) For all the property commonly known as 3831 West 12th Street, the sum of $25,000.
The agreement provided for payment of the total purchase price of $225,000 by means of a yearly annuity of $18,248.74, payable to Mr. and Mrs. Schultz, jointly during their lifetimes, and thereafter to the survivor of them. The annuity was payable in monthly installments of $1,520.31. The amount payable annually was calculated by the CPA based upon the tables contained in Rev. Rui. 62-216,1962-2 C.B. 30.
The parties further agreed that the annuity payments should be considered a charge upon the rents and profits realized by 212 Corp. from the property conveyed to it. Moreover, 212 Corp. was not permitted to mortgage or sell any of the property without first obtaining the written consent of Mr. and Mrs. Schultz. As further security, 212 Corp. authorized confession of judgment against it in the event of a default.
At the trial, the appraisers, Mr. Ruth and Mr. Eckert, were called as witnesses. They had been informed of the leases on the properties, and they were asked their opinion of the value of the properties in the light of such information. Mr. Ruth concluded that because of the lease, the value of the 18th Street property was $205,000. Based upon an alleged sale of the 12th Street property in 1969, Mr. Ruth concluded that its fair market value as of 1968 was $35,000. Mr. Eckert was also of the opinion that the leases increased the value of the properties; he found the value of the 18th Street property to be $204,600 and that of the 12th Street property to be $23,600.
On their joint Federal income tax returns for 1968 and 1969, Mr. and Mrs. Schultz took the position that their “investment in the contract,” for the purpose of computing the exclusion ratio of section 72, was $225,000, the alleged fair market value of the properties transferred. Accordingly, they excluded from gross income 76.13 percent of the annual annuity payments received by them. In his notice of deficiency, the Commissioner took the position that Mr. and Mrs. Schultz’ “investment in the contract” was limited to the value of the annuity received in exchange for the properties.5 Using the tables contained in section 20.2031-7(f), Estate Tax Regs., the Commissioner determined that the value of the annuity received was $169,603.56, rather than $225,000 as determined by the CPA. The Commissioner recomputed the exclusion ratio and determined that only 57.386 percent of the annual annuity payments was excludable from gross income.
On their joint Federal income tax returns for 1968 and 1969, Mr. and Mrs. Schultz reported no gain from the transfer of their properties in exchange for the annuity, asserting that no gain was reportable until they had fully recovered their basis in the properties. In his notice of deficiency, the Commissioner determined that Mr. and Mrs. Schultz had realized a long-term capital gain of $87,082.99 (the difference between their adjusted basis in the properties transferred and the value of the annuity), and that such gain was reportable ratably over the life expectancy of Mr. and Mrs. Schultz.
By an amendment to his answer, the Commissioner claimed increased deficiencies. Relying upon the real estate appraisals made by Mr. Ruth and Mr. Eckert, the Commissioner determined that the fair market value of the properties transferred was $124,500, the average of the two appraisals. Accordingly, he found that the “investment in the contract” did not exceed such value. He recalculated the exclusion ratio and determined that only 42.125 percent of the annual annuity payments was excludable from gross income. He also recomputed the long-term capital gain, which he determined to be $41,979.43,6 reportable ratably over the life expectancy of Mr. and Mrs. Schultz. In the alternative, the Commissioner claimed that the entire capital gain was reportable in 1968, the year of the transfer.
On its Federal income tax returns for 1968 and 1969,212 Corp. claimed a cost basis of $225,000 for the two properties transferred to it, $153,925 of which it allocated to depreciable buildings and improvements. It based its depreciation deductions on a useful life of 12% years for the building on the 18th Street property and a useful life of 20 years for the building on the 12th Street property. In his notice of deficiency, the Commissioner determined that the total cost of the two properties was $169,604,7 the value of the annuity at the date of the transaction. He allocated $99,048 of such cost to the building and improvements on the 18th Street property and $16,980 to the building on the 12th Street property, and reduced 212 Corp.’s depreciation deductions accordingly.
By the amendment to his answer, the Commissioner also claimed increased deficiencies against 212 Corp. In line with his conclusion that the value of the properties was only $124,500, he determined that 212 Corp.’s basis did not exceed such value. He allocated $96,300 to the building and improvements on the 18th Street property and $18,100 to the building on the 12th Street property. The Commissioner further determined that the useful life of the building on the 18th Street property was 20 years and that the useful life of the building on the 12th Street property was 50 years, also based upon the real estate appraisers’ reports. He reduced the corporation’s depreciation deductions accordingly.
OPINION
The rules governing inclusion in income of annuity payments are prescribed by section 72, which provides in relevant part:
SEC. 72. ANNUITIES; CERTAIN PROCEEDS OF ENDOWMENT AND LIFE INSURANCE CONTRACTS.
(a) General Rule for Annuities. — Except as otherwise provided in this chapter, gross income includes any amount received as an annuity (whether for a period certain or during one or more lives) under an annuity, endowment, or life insurance contract.
(b) Exclusion Ratio. — Gross income does not include that part of any amount received as an annuity under an annuity, endowment, or life insurance contract which bears the same ratio to such amount as the investment in the contract (as of the annuity starting date) bears to the expected return under the contract (as of such date). * * *
(c) Definitions.—
(1) Investment in the contract. — For purposes of subsection (b), the investment in the contract as of the annuity starting date is—
(A) the aggregate amount of premiums or other consideration paid for the contract, * * *
The first issue we must decide is the amount of Mr. and Mrs. Schultz’ investment in the contract, as defined in section 72(c)(1). It is now well settled that in cases in which appreciated property is transferred in consideration for an annuity, the annuitant’s investment in the contract is the fair market value of the property transferred. Estate of Bell v. Commissioner, 60 T.C. 469, 472-473 (1973); deCanizares v. Commissioner, 32 T.C. 345, 353 (1959); Gillespie v. Commissioner, 38 B.T.A. 673, 677 (1938); but see Rev. Rul. 69-74, 1969-1 C.B. 43. However, such rule is applicable only when the parties are dealing at arm’s length. Where the fair market value of the property transferred substantially exceeds the value of the annuity received, such excess is deemed to be a gift in the absence of proof to the contrary, and the taxpayer’s investment in the contract is limited to the value of the annuity. Estate of Bell v. Commissioner, supra. Thus, we must find both the value of the annuity and the value of the properties transferred in exchange for it.
In determining that the value of the annuity was $225,000, the petitioners relied upon Rev. Rul. 62-137,1962-2 C.B. 28, and Rev. Rul. 62-216, 1962-2 C.B. 30, which provided that certain annuities may be valued by reference to the values of commercial annuities. On the other hand, the Commissioner’s valuation of $169,603.56 was based on the annuity tables set forth in section 20.2031-7(f) of the Estate Tax Regulations. The petitioners claim that the commercial tables furnish more appropriate figures; they object to the actuarial tables in the Estate Tax Regulations because, they allege, such tables are based upon outmoded statistical data. They further object because the tables do not take into consideration the different life expectancies of men and women.
At the trial, the Commissioner presented an expert witness who testified that the rates charged by life insurance companies are affected by several factors not present in a private annuity transaction. For example, the price charged for a commercial annuity includes a “loading factor” for anticipated expenses and profits. Commercial companies generally are subject to State regulation; they are restricted in their investments, and are required to maintain reserves to assure that they are able to meet their annuity payment obligations. Moreover, commercial annuitants, as a self-selected class, have a longer life expectancy than the general population. All of these factors operate to increase the cost of a commercial annuity.
This same issue, together with the same arguments, was considered in Estate of Bell v. Commissioner, supra, where it was held that the actuarial tables in the Estate Tax Regulations could be used by the Commissioner in valuing a private annuity. See also Dix v. Commissioner, 392 F.2d 313, 315-316 (4th Cir. 1968), affg. 46 T.C. 796 (1966). As has been said in earlier cases, the Commissioner’s use of the estate tax tables in valuing the annuity in this case is presumptively correct, and the petitioners have the burden of proving that the use of such tables was arbitrary and unreasonable. Dix v. Commissioner, supra; Estate of Bell v. Commissioner, supra. The petitioners have presented no evidence to demonstrate that the longer life expectancy of commercial annuitants should be attributed to Mr. and Mrs. Schultz. For this reason, Dunigan v. United States, 434 F.2d 892 (5th Cir. 1970), relied upon by the petitioners, is distinguishable. Moreover, the petitioners’ bare allegation that the tables used by the Commissioner are obsolete is not sufficient to support a finding that the use of such tables was arbitrary and unreasonable. Dix v. Commissioner, supra; Estate of Bell v. Commissioner, supra.
The petitioners also argue that since they relied upon Rev. Rui. 62-137, supra, in arranging for the exchange of the properties for the annuity, they should be allowed to use the commercial tables, even though the Court decides that the estate tax tables are more appropriate. However, such ruling states that annuity contracts issued by corporations which enter into annuity contracts “from time to time,” but which are not commercial life insurance companies, may be valued as commercial annuity contracts. In Dix v. Commissioner, supra, the Court pointed out that the ruling by its terms applied only to corporations which entered into annuity contracts “from time to time.” The Court found that the ruling was applicable only to those corporations which wrote enough annuity contracts to obtain a good spread of the actuarial risk. 392 F.2d at 316. Clearly, that is not the case here. Therefore, we find that the petitioners were not justified in relying upon Rev. Rui. 62-137, supra, and we sustain the Commissioner’s determination that the value of the annuity was $169,603.56.
In this record, there are several indications of the fair market value of the 18th Street property and the 12th Street property, and they suggest widely different results. The term “fair market value” generally is defined as the price at which property would change hands in a transaction between a willing buyer and a willing seller, neither being under a compulsion to buy or sell and both being reasonably informed as to all relevant facts. Alvary v. United States, 302 F.2d 790, 794 (2d Cir. 1962); Estate of Guggenheim v. Commissioner, 39 B.T.A. 251,292 (1939), modified 117 F.2d 469 (2d Cir. 1941), cert. denied 314 U.S. 621 (1941); see also sec. 1.170-l(c), Income Tax Regs.; sec. 20.2031-1(b), Estate Tax Regs.; sec. 25.2512-1, Gift Tax Regs.
The petitioners argue that the parties agreed upon a value of $225,000 for the properties and that this Court is bound to respect the value contractually agreed upon by the parties and fixed by them as the selling price of the properties. Commissioner v. Patino, 186 F.2d 962, 967 (4th Cir. 1950), affg. 13 T.C. 816 (1949); Evans v. Rothensies, 114 F.2d 958, 962 (3d Cir. 1940); Commissioner v. John C. Moore Corp., 42 F.2d 186,188 (2d Cir. 1930), affg. 15 B.T.A. 1140 (1929). However, this principle is applicable only if the parties are dealing at arm’s length, and there is no reason to question the bona fides of the transaction or the value fixed by the parties. Commissioner v. Patino, supra at 967.
In this case, the selling price of the larger of the two properties, the 18th Street property, clearly was not fixed as a result of arm’s-length bargaining between the parties. In fact, there was no bargaining whatsoever with respect to price; the selling price was determined unilaterally by Mr. Schultz. Robert, Harold, and Jerome made no attempt to ascertain, through real estate appraisals or otherwise, the fair market value of the property. The selling price was immaterial to Robert, Harold, and Jerome as long as the rentals from Schultz Co. were sufficient to fund the annuity. From their point of view, the acquisition of the properties was a no-risk investment. Under these circumstances, we cannot accept the contractually agreed upon selling price as determinative.
In his notice of deficiency, the Commissioner based his valuation of the 18th Street property and the 12th Street property on the value of the annuity given in exchange for such properties, that is, $169,603.56. In his amendment to the answer, he adopted the average of the values determined by Mr. Ruth and Mr. Eckert. He has the burden of proving such lower valuations. Rule 142(a), Tax Court Rules of Practice and Procedure.
In his written report, Mr. Ruth assigned a value of $95,000 to the 18th Street property and $22,000 to the 12th Street property. Mr. Eckert was of the opinion that the value of the 18th Street property was $110,000 and that the value of the 12th Street property was $22,000. In valuing the 18th Street property, Mr. Ruth made a projection of the income to be earned by such property and estimated that the gross annual rental would be $40,000. Mr. Eckert used the income capitalization method in valuing both properties, and he anticipated that the gross annual rental would be $33,700 from the 18th Street property and $3,250 from the 12th Street property. Both appraisers assumed that the property would be vacant and, therefore, included a discount for expected vacancy; they also discounted the income for the costs of repair and maintenance. Since the appraisers were unaware of the Schultz Co. lease and failed to take it into consideration in arriving at the values set forth in their written reports, those opinions are obviously not reliable.
Nor are their revised valuations presented at the trial altogether persuasive. At the trial, Mr. Ruth concluded that in light of the Schultz Co. lease, the value of the 18th Street property was $205,000. Because of such lease, Mr. Eckert increased his valuations to $204,600 for the 18th Street property and $23,600 for the 12th Street property. However, in arriving at the higher valuations, the appraisers reduced the vacancy factor and eliminated the reduction for the costs of repair and maintenance, but they continued to use the same estimates as to the annual rentals to be derived from the properties, which estimates were in fact substantially in excess of the rentals provided by the Schultz Co. lease. Thus, in effect, they took into consideration some of the actual facts, but not all of them. In addition, Mr. Ruth increased his valuation of the 12th Street property to $35,000, but the increase was based on his assertion that the property was sold for a substantially larger price in 1969. In fact, the evidence indicates that the property was not sold in 1969.
After weighing the several opinions of the value of the two properties, we are convinced that the lower valuations are too low and that the higher valuations are too high. The fact that the properties were exchanged for an annuity having a value of $169,603.56 furnishes some evidence that the properties were also equal to such value.8 United States v. Davis, 370 U.S. 65, 72-73 (1962). In our judgment, it seems that such amount constitutes a reasonable and appropriate value for the 18th Street and 12th Street properties. Accordingly, we find and hold that the investment in the contract was $169,603.56.
Since we have found that the value of the annuity given in exchange for the 18th Street and 12th Street properties was $169,603.56, it follows that Mr. and Mrs. Schultz realized a gain of $87,082.99 as a result of such transaction, the difference between the value of the annuity and their basis in the properties. The parties disagree with respect to the manner of reporting the resulting gain. This Court likewise considered the same question in the Bell case.
In Estate of Bell v. Commissioner, supra, the taxpayers transferred stock to their children in exchange for the transferees’ agreement to pay them an annuity. The stock was placed in escrow as security for the payment of the annuity. In the event of a default, the agreement provided for a cognovit judgment against the transferees. The Court found that the agreement was amply secured. The transferors’ basis in the stock was less than the value of the annuity. The Court thereupon found that the resulting gain was taxable as income in the year of the transfer.
The facts in the case before us are not materially different. The annuity in question was secured both by the real property and the obligation of the lessee to pay rentals on account thereof. The property could not be sold without the consent of the annuitants. The agreement embodied a confession-of-judgment clause.
An annuity contract such as is involved in this case is “property.” We are not dealing with a mere unsecured promise to pay a specific amount. In fact, the Court has resorted to the value of the annuity in order to determine the value of the property received in exchange. We thus have a transfer of property (real estate) for other property (an annuity) where the value of the property received exceeds the transferors’ basis for the property transferred. Following our opinion in Estate of Bell v. Commissioner, supra, the exchange represents a “closed transaction” and the resulting gain is taxable in the year of exchange.
Our finding that the value of the annuity was $169,603.56 also establishes the cost basis to 212 Corp. of the two properties. We have also found that the aggregate value of the properties was equal to such amount, but it is now necessary to determine the value of each property. There was little difference of opinion as to the value of the 12th Street property, and after reviewing the evidence, we find its value to be $24,000. The remainder, $145,603.56, is allocable to the 18th Street property. As the improvements and land were purchased for a lump sum, the basis must be further allocated between the depreciable and nondepreciable properties according to their respective fair market values at the time of acquisition. Sec. 1.167(a)-2 and (a)-5, Income Tax Regs. Unfortunately, the parties have devoted little attention to the issue of a proper allocation in their briefs.
It is clear from the experts’ reports that the value of the two properties was derived in large measure from the improvements thereon, the underlying land being of only minimal value. Accordingly, we hold that the depreciable cost basis to 212 Corp. of the building on the 12th Street property is $20,000, and that the depreciable cost basis of the building on the 18th Street property is $95,000. The amount to be allocated to the blacktop and fence on the 18th Street property poses a more difficult question. On its Federal income tax returns, 212 Corp. allocated $33,200 to such improvements. The two experts varied widely in their appraisals of such improvements; Mr. Eckert determined the value to be $12,328, whereas Mr. Ruth determined the value to be $2,473. The original cost of such improvements to Mr. Schultz was approximately $50,000. Using our best judgment, we allocated $15,000 of the cost of the 18th Street property to the blacktop and fence.
The parties are in agreement that the blacktop and fence on the 18th Street property had a remaining useful life of 15 years. However, they disagree as to the remaining useful lives of the two buildings. On its income tax returns, 212 Corp. claimed that the building on the 18th Street property had a remaining useful life (as of 1968) of 12.5 years. However, Mr. Eckert in his report estimated that the remaining useful life of the building was 20 years. Moreover, it is clear that 212 Corp. anticipated being able to lease the building for more than 12.5 years, since the lease it executed granted the lessee three independent 5-year options to renew at the end of the preceding term. Furthermore, as the only income available to 212 Corp. to meet its annuity obligation was the rentals from the property, it must have anticipated that the remaining useful life of the building was at least 16.2 years, the joint life expectancy of Mr. and Mrs. Schultz. In addition, on the original plan submitted to Mr. Schultz, the CPA stated that he considered the building to have a remaining useful life of 20 years. Accordingly, we find that the building on the 18th Street property had a remaining useful life, as of 1968, of 20 years.
On its income tax returns, 212 Corp. claimed that the building on the 12th Street property had a remaining useful life of 20 years. The Commissioner contends that the remaining useful life was 50 years, based upon the estimate in Mr. Eckert’s report. From his report, it appears that Mr. Eckert’s estimate was based in part upon his determination that the building, due to its excellent location, would suffer no economic obsolescence. 212 Corp. presented no evidence as to the remaining useful life of the building. Under the circumstances, we find that the remaining useful life of the building on the 12th Street property was 50 years.
To reflect our conclusions herein,
Decisions null be entered under Rule 155.
Reviewed by the Court.