[321]*321OPINION.
Lansdon:
In his amended answers, filed at the hearing, without objection from the taxpayers, the Commissioner denied that the Hotel Bentley was owned and operated during the years 19TT and 1918 by a partnership composed of J. A. Bentley and E. W. Zimmerman, with respective interests of three-fourths and one' fourth therein, and alleged that such hotel was erected, owned and operated during the years 1917 and 1918 by the Hotel Bentley Co., Ltd., a Louisiana corporation organized in 1908. The issue so raised must be decided before any consideration of the other matters in controversy.
The record discloses that the charter of a corporation designated as the Hotel Bentley Co., Ltd., was recorded in the office of the recorder of the Parish of Rapides, State of Louisiana, on August 15, 1908. There is conclusive evidence, however, that such corporation never issued any stock; never acquired the property known as the Hotel Bentley from the owners thereof, Bentley and Zimmerman; never had any bank account, and that it never operated the Hotel Bentley either as owner or lessee of such property. If such a corporation had any legal existence during the years 1917 and 1918, it was a mere shadow without substance or function. The corporation-excise and income-tax returns for the years 1909 to 1915, inclusive, made in the name of the Hotel Bentley Co., Ltd., were without authority or legal effect, since they were the returns of a corporation which was not engaged in the business the income and expenses of which they purported to show. The gains and losses of the Plotel Bentley, with which we are concerned here, were not the gains and losses of the shadow corporation which never issued any stock, acquired any property or at any time operated this hotel. We "are fully persuaded that all such gains or losses were the gains or losses of the partnership composed of Bentley and Zimmerman.
The second issue presented for our consideration is the determination of the true tax liability of these taxpayers, resulting from the operation of the Hotel Bentley during the year 1917. The taxpayers aver that the hotel was operated during such year at a loss of $142,588.69, and in their income-tax returns each of them deducted his proportionate share of such alleged loss from his gross income for that year. The Commissioner disallowed these deductions, held that the partnership realized a net income in the amount of $16,887.08, [322]*322and added three-fourths and one-fourth of such amount to the respective gross incomes of Bentley and Zimmerman.
Some time in 1911, Bentley, presumably with the consent of Zimmerman, employed one T. L. Barnes as manager of the hotel. In April, 1917, Bentley became suspicious of the integrity of Barnes and employed a certified public accountant to audit the accounts and books of the hotel and to make a report of the result of such audit. The accountant discovered gross discrepancies between the cash collections reflected in the books of the various cashiers and the record of such collections in the regular books of account kept by one Lawrence under the direction of Barnes. He also found that many of the earlier books and records relating to the hotel had been lost or destroyed, and that many of the vouchers and invoices relating to the business of the hotel for the time immediately preceding the audit had been destroyed by Barnes.
From all the data available the auditor reached the conclusion that the hotel should have been operated at a profit and that Barnes and Lawrence, in collusion with each other, had embezzled hotel funds and property in the amount of at least $175,000. The report of the auditor dated June 22, 1917, showed an operating deficit from the opening of the hotel in 1908 to April 30,1917, in the amount of $164,036.93, of which $14,983.33 was ascribed to the period from January 1 to April 30, 1917. At the close of the year 1917 the same accountant made an audit covering operations from April 30 to December 31, 1917, and reported net operating earnings for that period in the amount of $17,946.69. He then made some minor adjustments, assembled the results of his audits and determined that the net operating deficit at that date was $142,588.69.
Upon the theory that the entire operating deficit resulted from the alleged peculations of Barnes and Lawrence and was a loss sustained in 1917 because it was ascertained in that year, the taxpayers deducted proportionate parts of such deficit from their respective gross incomes in their income-tax returns for such year as losses sustained during the year. The Commissioner disallowed all the alleged loss from defalcation, except the amounts proved to have been embezzled within the taxable year, disallowed part of the depreciation taken on the building, and determined a net income for the Hotel Bentley for the year 1917 in the amount of $16,887.08.
The taxpayers have not convinced us that the entire amount of $142,588.69 is a deductible loss of the Hotel Bentley for 1917. There is no conclusive evidence that the entire deficit resulted from the peculations of Barnes and Lawrence. On the other hand, there is proof that the hotel lost much money before Barnes was employed, and there is good reason to believe that it was not meeting its operating expenses during the earlier years of such employment. In any [323]*323event it is not enough for the taxpayers’ purpose in this proceeding to prove that the entire deficit resulted from the alleged embezzlement. In order to sustain their claim for deductions on this account they must show in what years and in what amounts their property was embezzled. This they have not done except as to the comparatively small amounts traced to Barnes in 1917 and in part recouped by a payment of $5,000 by Mrs. Barnes after the death of her husband. In the case of United States v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., U. S. Dist. Ct., So. Dist. Ohio, February 23, 1916 (not reported) the court said:
The time of the discovery of a loss bears no relation to the loss sustained. The loss 'was sustained when the theft occurred, although the defendant did not know at the time of the depletion of its assets. As each embezzlement occurred, the defendant was poorer to the extent of it. It then sustained a loss.
Inasmuch as the proved defalcations are included in the operating deficit of the hotel for the period from January 1, 1917, to April 30, 1917, they require no separate consideration in computing the net income of the taxpayers for the year 1917. The evidence shows that from January 1 to May 1, 1917, the estimated operating deficit of the Hotel Bentley was $14,933.33 and that the actual deficit for that period was later ascertained to have been $15,441.78. The net-operating earnings as reflected by the books and reported by the auditor for the period from May 1 to December 31, 1917, was $17,946.69. It is obvious, therefore, that the net income of the hotel for the year 1917, which is the taxable period, was'$2,504.91, unless errors in the computations of the petitioners are established. In computing the net income of the hotel for 1917, a deduction on account of depreciation of the building was taken in the amount of $15,000. The Commissioner disallowed this in part and allowed depreciation at the rate of 2 per cent. We are of the opinion that 2½ per cent should be allowed on a valuation of $540,000 ai March 1, 1913.
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[321]*321OPINION.
Lansdon:
In his amended answers, filed at the hearing, without objection from the taxpayers, the Commissioner denied that the Hotel Bentley was owned and operated during the years 19TT and 1918 by a partnership composed of J. A. Bentley and E. W. Zimmerman, with respective interests of three-fourths and one' fourth therein, and alleged that such hotel was erected, owned and operated during the years 1917 and 1918 by the Hotel Bentley Co., Ltd., a Louisiana corporation organized in 1908. The issue so raised must be decided before any consideration of the other matters in controversy.
The record discloses that the charter of a corporation designated as the Hotel Bentley Co., Ltd., was recorded in the office of the recorder of the Parish of Rapides, State of Louisiana, on August 15, 1908. There is conclusive evidence, however, that such corporation never issued any stock; never acquired the property known as the Hotel Bentley from the owners thereof, Bentley and Zimmerman; never had any bank account, and that it never operated the Hotel Bentley either as owner or lessee of such property. If such a corporation had any legal existence during the years 1917 and 1918, it was a mere shadow without substance or function. The corporation-excise and income-tax returns for the years 1909 to 1915, inclusive, made in the name of the Hotel Bentley Co., Ltd., were without authority or legal effect, since they were the returns of a corporation which was not engaged in the business the income and expenses of which they purported to show. The gains and losses of the Plotel Bentley, with which we are concerned here, were not the gains and losses of the shadow corporation which never issued any stock, acquired any property or at any time operated this hotel. We "are fully persuaded that all such gains or losses were the gains or losses of the partnership composed of Bentley and Zimmerman.
The second issue presented for our consideration is the determination of the true tax liability of these taxpayers, resulting from the operation of the Hotel Bentley during the year 1917. The taxpayers aver that the hotel was operated during such year at a loss of $142,588.69, and in their income-tax returns each of them deducted his proportionate share of such alleged loss from his gross income for that year. The Commissioner disallowed these deductions, held that the partnership realized a net income in the amount of $16,887.08, [322]*322and added three-fourths and one-fourth of such amount to the respective gross incomes of Bentley and Zimmerman.
Some time in 1911, Bentley, presumably with the consent of Zimmerman, employed one T. L. Barnes as manager of the hotel. In April, 1917, Bentley became suspicious of the integrity of Barnes and employed a certified public accountant to audit the accounts and books of the hotel and to make a report of the result of such audit. The accountant discovered gross discrepancies between the cash collections reflected in the books of the various cashiers and the record of such collections in the regular books of account kept by one Lawrence under the direction of Barnes. He also found that many of the earlier books and records relating to the hotel had been lost or destroyed, and that many of the vouchers and invoices relating to the business of the hotel for the time immediately preceding the audit had been destroyed by Barnes.
From all the data available the auditor reached the conclusion that the hotel should have been operated at a profit and that Barnes and Lawrence, in collusion with each other, had embezzled hotel funds and property in the amount of at least $175,000. The report of the auditor dated June 22, 1917, showed an operating deficit from the opening of the hotel in 1908 to April 30,1917, in the amount of $164,036.93, of which $14,983.33 was ascribed to the period from January 1 to April 30, 1917. At the close of the year 1917 the same accountant made an audit covering operations from April 30 to December 31, 1917, and reported net operating earnings for that period in the amount of $17,946.69. He then made some minor adjustments, assembled the results of his audits and determined that the net operating deficit at that date was $142,588.69.
Upon the theory that the entire operating deficit resulted from the alleged peculations of Barnes and Lawrence and was a loss sustained in 1917 because it was ascertained in that year, the taxpayers deducted proportionate parts of such deficit from their respective gross incomes in their income-tax returns for such year as losses sustained during the year. The Commissioner disallowed all the alleged loss from defalcation, except the amounts proved to have been embezzled within the taxable year, disallowed part of the depreciation taken on the building, and determined a net income for the Hotel Bentley for the year 1917 in the amount of $16,887.08.
The taxpayers have not convinced us that the entire amount of $142,588.69 is a deductible loss of the Hotel Bentley for 1917. There is no conclusive evidence that the entire deficit resulted from the peculations of Barnes and Lawrence. On the other hand, there is proof that the hotel lost much money before Barnes was employed, and there is good reason to believe that it was not meeting its operating expenses during the earlier years of such employment. In any [323]*323event it is not enough for the taxpayers’ purpose in this proceeding to prove that the entire deficit resulted from the alleged embezzlement. In order to sustain their claim for deductions on this account they must show in what years and in what amounts their property was embezzled. This they have not done except as to the comparatively small amounts traced to Barnes in 1917 and in part recouped by a payment of $5,000 by Mrs. Barnes after the death of her husband. In the case of United States v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., U. S. Dist. Ct., So. Dist. Ohio, February 23, 1916 (not reported) the court said:
The time of the discovery of a loss bears no relation to the loss sustained. The loss 'was sustained when the theft occurred, although the defendant did not know at the time of the depletion of its assets. As each embezzlement occurred, the defendant was poorer to the extent of it. It then sustained a loss.
Inasmuch as the proved defalcations are included in the operating deficit of the hotel for the period from January 1, 1917, to April 30, 1917, they require no separate consideration in computing the net income of the taxpayers for the year 1917. The evidence shows that from January 1 to May 1, 1917, the estimated operating deficit of the Hotel Bentley was $14,933.33 and that the actual deficit for that period was later ascertained to have been $15,441.78. The net-operating earnings as reflected by the books and reported by the auditor for the period from May 1 to December 31, 1917, was $17,946.69. It is obvious, therefore, that the net income of the hotel for the year 1917, which is the taxable period, was'$2,504.91, unless errors in the computations of the petitioners are established. In computing the net income of the hotel for 1917, a deduction on account of depreciation of the building was taken in the amount of $15,000. The Commissioner disallowed this in part and allowed depreciation at the rate of 2 per cent. We are of the opinion that 2½ per cent should be allowed on a valuation of $540,000 ai March 1, 1913.
The third issue for our consideration is whether the partnership sold the assets of the Hotel Bentley Company, on December 31, 1918, or at some date in the year 1919. The taxpayers contend that all the material steps in this transaction were taken in 1918 and that the partnership, by virtue of an oral agieement to form a corporation and convey the hotel assets thereto when formed, parted with the beneficial title to such property at the date of the agreement to incorporate and from that time became a trustee for the stockholders of the proposed corporation, even though its legal ownership continued until the date of the actual transfer by deed. The evidence that any agreement to transfer the assets was entered into in 1918 is not convincing. If there was such an agreement, it was oral and we are not fully informed as to its terms. It is true that the [324]*324charter of the Hotel Bentley was executed December 31, 1918, but the assets to be exchanged for stock were not appraised as the law of Louisiana requires until January 1, 1919, and the deed transferring the assets was not executed until January 2, 1919, on which date such assets were formally proffered to the corporation and formally taken over by appropriate corporate action, as. disclosed by the official minutes of the Hotel Bentley Co., Inc.
In support of their contention the taxpayers cite African M. E. Church v. Conover, 27 N. J. Eq. 157, wherein the court holds:
Where a purchase [of land] is made by several persons representing a voluntary association * * * for the common benefit of all the persons composing the association, and the purchase money is paid, and possession of the land given, equity raises a promise by the vendor to make a title, either to the persons making the payment, or to the corporation, if one be created.
In such case, the vendor, as to the title, becomes a trustee for the purchasers; and they being the mere agents of the voluntary association, the moment the association is incorporated, it has a right to a conveyance from the vendor.
We are not convinced that the authority relied on by the taxpayers sustains their contention. The facts are easily distinguished. Our question is whether these taxpayers sold their property to the Hotel Bentley Co., Inc., in 1918, or, by their agreement to form a corporation and their execution of the charter of the proposed corporation, so obligated themselves that from the date of such agreement and execution they ceased to be, and the corporation became, the benefical owner of the property. Inasmuch as the proposed incorporation was not concluded in 1918, and no offer of sale was made in that year, we are of the opinion that the sale of' the property to the Hotel Bentley Co., Inc., was made in 1919 and that such sale does not affect the tax liability of the taxpayers for 1918.
The only remaining question relating to the deficiencies asserted for 1918 is the correct rate of depreciation of the hotel building, which we have held as to 1917 should be 2½ per cent on a basic value of $540,000. The income of the taxpayers for 1918 should also have the benefit of the increased rate of depreciation which we have allowed.
We must now determine the gain or loss resulting to the partnership from its sale of its hotel assets to the corporation in 1919. For such assets the corporation issued its stock of the par value of $200,000 and assumed liabilities of the partnership In the amount of $89,955.44. The taxpayers contend that the fair market value of the stock received was not in excess of $289,955.44. It is in evidence that, at or about the date of the transfer, shares of stock were sold at par in the amount of $40,000, that a profitable department of the hotel’s business had just been abandoned on account of Federal prohibition, and that except during the war there had been small profits, if any, from the operation of the property. We are convinced that $289,955.44 was the fair market value of the stock re[325]*325ceived for the hotel property at thé date of its transfer to the corporation.
The partnership received $289,955.44 for its assets after January 1, 1919. Did it sustain a loss or realize a profit? To answer this question the law requires us in the case of property acquired prior to March 1, 1913, to determine the fair market price or value of the assets at that date. In this case, the market price can not be determined from any offers or sales. We must therefore resort to some other method for determining its fair market value at the basic date.
There are two elements of the composite value of the hotel property at March 1, 1913, that are not in dispute. The site cost $40,000 in 1908 and was not less valuable in 1913. The hotel equipment cost $75,000 and there is ample evidence that this value was maintained, less an annual depreciation of 10 per cent, and that it had a fair market value of $52,000 at March 1, 1913.
We have found that the depreciated cost of the building at March 1, was $540,000. The taxpayers contend that in the absence of an established market price the depreciated cost represents the fair market value. With this contention we can not agree. It is in evidence that when constructed the Hotel Bentley was in advance of the needs of the town and that with due consideration for the losses that may have resulted from embezzlements it had not been operated at a profit prior to the basic date. Admitting these adverse conditions, we believe that this building had a very substantial value at March 1, 1913. Alexandria was and is a rapidly growing city, situated in the heart of a rich lumbering and farming district, ' The Bentley was the only good hotel in the city or in that immediate territory. At March 1, 1913, there was no reason to believe that the property would not soon become profitable. The evidence convinces us that from such date it might have been operated at a profit but for the peculations of Barnes and Lawrence. To sustain their contentions of value the taxpayers introduced opinion evidence by many witnesses qualified to pass on the value of such property. These witnesses testified to reproductive values of the property at March 1, 1913, ranging from $550,000 to $650,000. It is our opinion that the fair market value of the hotel building at March 1, 1913, was $450,000; of the land, $40,000; and of the furniture and equipment, $52,000, or a total of $542,000, and this amount should be used as the basis for determining the loss sustained by the partnership when it sold the property to the corporation in 1919. It follows therefore that each of the taxpayers is entitled to deduct his proportionate share of the loss so sustained and computed from his gross income for 1919.
Judgment will be entered on 15 days’ notice, under Bule 50.