[1309]*1309OPINION..
Lansdon:
The issues involved in this proceeding are sufficiently set forth in our preliminary statement, sufra. We shall discuss and decide such questions in the order there stated, except to hold that we have no jurisdiction over any controversies relating to 1920, a taxable year in which no deficiency is asserted. Appeal of Cornelius Cotton Mills, 4 B. T. A. 255; Appeal of W. H. Morefield, 4 B. T. A. 394.
The contending parties introduced many witnesses to prove value of the lands of the petitioner at the date of acquisition and at March 1, 1913. We have used great care in the consideration of the weight of the opinion evidence so adduced. We are convinced that the computation set forth in our findings of fact above represents the fair cash value of the assets acquired at date of purchase and at March 1, 1913. We are also convinced that there was no appreciation in the value of Delta Farm lands between March 1, 1913, and the dates of the transfers, sales and exchanges upon which the [1310]*1310Commissioner bases his assertions of tax liability arising from gain realized from such transactions.
Having determined that the land taken into the petitioner’s assets at date of incorporation had a cash value in the amount of $7,627,400, and the parties having stipulated that the cost of reclamation work done by the petitioner between March 1, 1913, and the date of the first transfer to the reclamation districts in 1918 was $1,192,652.82, we conclude that the petitioner is entitled to have the sum of these two amounts less bonds and other evidence of borrowed capital assumed, included in the computation of its statutory invested capital for profits tax purposes in each of the taxable years. The petitioner' admits that the Commissioner correctly adjusted its invested capital for the taxable years except as to the value of the land acquired for stock at date of organization. The correct invested capital in accordance with our findings is left for determination under Rule 50.
It is not disputed that the reclamation districts in question were properly and legally organized under the laws of California. No shadow of invalidity darkens any of the processes either of organization or operation of such districts. We are of the opinion that the series of transactions relating to the organization and bonding of the reclamation districts; the sale of the easements and personal property to the several districts; the assessments against certain land owned by the company within the several districts; the issuance of warrants against the funds derived from the assessments; the issuance, sale and purchase of district reclamation bonds as provided for in section 3480, California Political Code of 1922, and the exchange of $2,850,000 face value of these reclamation bonds for outstanding Delta bonds amounting to $2,750,000 face value were in fact one business deal and should be so considered, as the facts clearly indicate they were intended by the petitioner as a means to extricate it from an intolerable situation and place the petitioner on a more efficient working basis. To effectuate this condition it incurred an additional bonded indebtedness of $100,000, paid $40,000 in cash to its brokers for financing and engineering the exchange of bonds, and incurred numerous other expenses. These amounts were sacrificed as a pawn for a better position on the board, and this better position seems to have been the only gain. Without it the petitioner would have been in no better condition at the end of the deal than it was at the beginning. Dor every cent it received from any one of these reclamation districts or otherwise as a result of these transactions it gave in return an obligation to pay a like or greater amount secured by a lien upon its lands within the districts.
The case comes clearly within the decision in Rindge Land & Navigation Co., 2 B. T. A. 1179. A quotation from that case is especially [1311]*1311pertinent here. At page 1188 the Board said “ If we read the California statutes aright, it was not contemplated that the landowner should be deprived of anything by the organization of reclamation districts. On the contrary, the landowner, by its vote in dollars of value, was to control the district. The district was its agent, created at its request, and vested with certain powers by the State, only because those powers were necessary to perform certain acts for the benefit of the landowner. * * * Where there is but one landowner, as in this appeal, a reclamation district is nothing more than a legal fiction — an instrument created to permit the owner to issue bonds for its own purposes, and an entity which does not seem to come within any definition of person, partnership, corporation, or association, contained- in the Revenue Act of 1918.” In the present case the organization of the districts and all that followed up to and including the issuance of the warrants, was simply a means to the accomplishment of an end — one part of an operation as clearly related to the others as are the different acts of a surgical operation to each other — all parts of one harmonious whole.
It may be noted that the lands of each individual owner were assessed separately, even the 214-acre tracts of the trustees, and that the assessments were made in proportion to the benefits already derived and to be derived from the reclamation work. This necessitated a separate accounting with each of the then owners of the land and the payment to each owner of his share of the money for which his property was assessed, either in reclamation work or in specie. But every cent thus received must first be paid in by the owner, either directly or by the creation of a debt of equal or greater amount. Neither the sale of the property to the districts nor any other of these transactions, nor all of them ivas at the time productive of taxable income.
The only possible variation between the basic facts here and in the Eindge appeal is raised by the Commissioner’s contention that at the time of the organization of the districts and the transfer of the petitioner’s assets thereto in exchange for bonds, there was one considerable tract that was owned by Weyl and Zuckerman Avho were not parties to the organization and whose lands if then so owned were security for bonds issued against them.
It is disclosed by the evidence that the petitioner acquired the ■ Zuckerman land subject to a contract of sale at $125 per acre coupled with the condition that it must complete the reclamation works thereon at its own cost. This contract to sell was voluntarily renewed by the parties to it and provided that Weyl and Zuckerman should enter into possession and use in 1914, that they should make certain Xiayments specified as to due dates and amounts, that their total payments were to be reduced by the amount of outstanding reclama[1312]*1312tion bonds issued in payment of warrants assessed against the land, that the petitioner was to pay certain taxes on the land, and complete and maintain the reclamation works necessary to its use as a producing agricultural property, and that when all conditions had been met by both parties a deed conveying legal title from the petitioner to Weyl and Zuckerman would be made.
This agreement to sell appears to have been nothing more than an executory contract, the completion of which depended on conditions that had to be met as undertaken by each of the parties thereto.
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[1309]*1309OPINION..
Lansdon:
The issues involved in this proceeding are sufficiently set forth in our preliminary statement, sufra. We shall discuss and decide such questions in the order there stated, except to hold that we have no jurisdiction over any controversies relating to 1920, a taxable year in which no deficiency is asserted. Appeal of Cornelius Cotton Mills, 4 B. T. A. 255; Appeal of W. H. Morefield, 4 B. T. A. 394.
The contending parties introduced many witnesses to prove value of the lands of the petitioner at the date of acquisition and at March 1, 1913. We have used great care in the consideration of the weight of the opinion evidence so adduced. We are convinced that the computation set forth in our findings of fact above represents the fair cash value of the assets acquired at date of purchase and at March 1, 1913. We are also convinced that there was no appreciation in the value of Delta Farm lands between March 1, 1913, and the dates of the transfers, sales and exchanges upon which the [1310]*1310Commissioner bases his assertions of tax liability arising from gain realized from such transactions.
Having determined that the land taken into the petitioner’s assets at date of incorporation had a cash value in the amount of $7,627,400, and the parties having stipulated that the cost of reclamation work done by the petitioner between March 1, 1913, and the date of the first transfer to the reclamation districts in 1918 was $1,192,652.82, we conclude that the petitioner is entitled to have the sum of these two amounts less bonds and other evidence of borrowed capital assumed, included in the computation of its statutory invested capital for profits tax purposes in each of the taxable years. The petitioner' admits that the Commissioner correctly adjusted its invested capital for the taxable years except as to the value of the land acquired for stock at date of organization. The correct invested capital in accordance with our findings is left for determination under Rule 50.
It is not disputed that the reclamation districts in question were properly and legally organized under the laws of California. No shadow of invalidity darkens any of the processes either of organization or operation of such districts. We are of the opinion that the series of transactions relating to the organization and bonding of the reclamation districts; the sale of the easements and personal property to the several districts; the assessments against certain land owned by the company within the several districts; the issuance of warrants against the funds derived from the assessments; the issuance, sale and purchase of district reclamation bonds as provided for in section 3480, California Political Code of 1922, and the exchange of $2,850,000 face value of these reclamation bonds for outstanding Delta bonds amounting to $2,750,000 face value were in fact one business deal and should be so considered, as the facts clearly indicate they were intended by the petitioner as a means to extricate it from an intolerable situation and place the petitioner on a more efficient working basis. To effectuate this condition it incurred an additional bonded indebtedness of $100,000, paid $40,000 in cash to its brokers for financing and engineering the exchange of bonds, and incurred numerous other expenses. These amounts were sacrificed as a pawn for a better position on the board, and this better position seems to have been the only gain. Without it the petitioner would have been in no better condition at the end of the deal than it was at the beginning. Dor every cent it received from any one of these reclamation districts or otherwise as a result of these transactions it gave in return an obligation to pay a like or greater amount secured by a lien upon its lands within the districts.
The case comes clearly within the decision in Rindge Land & Navigation Co., 2 B. T. A. 1179. A quotation from that case is especially [1311]*1311pertinent here. At page 1188 the Board said “ If we read the California statutes aright, it was not contemplated that the landowner should be deprived of anything by the organization of reclamation districts. On the contrary, the landowner, by its vote in dollars of value, was to control the district. The district was its agent, created at its request, and vested with certain powers by the State, only because those powers were necessary to perform certain acts for the benefit of the landowner. * * * Where there is but one landowner, as in this appeal, a reclamation district is nothing more than a legal fiction — an instrument created to permit the owner to issue bonds for its own purposes, and an entity which does not seem to come within any definition of person, partnership, corporation, or association, contained- in the Revenue Act of 1918.” In the present case the organization of the districts and all that followed up to and including the issuance of the warrants, was simply a means to the accomplishment of an end — one part of an operation as clearly related to the others as are the different acts of a surgical operation to each other — all parts of one harmonious whole.
It may be noted that the lands of each individual owner were assessed separately, even the 214-acre tracts of the trustees, and that the assessments were made in proportion to the benefits already derived and to be derived from the reclamation work. This necessitated a separate accounting with each of the then owners of the land and the payment to each owner of his share of the money for which his property was assessed, either in reclamation work or in specie. But every cent thus received must first be paid in by the owner, either directly or by the creation of a debt of equal or greater amount. Neither the sale of the property to the districts nor any other of these transactions, nor all of them ivas at the time productive of taxable income.
The only possible variation between the basic facts here and in the Eindge appeal is raised by the Commissioner’s contention that at the time of the organization of the districts and the transfer of the petitioner’s assets thereto in exchange for bonds, there was one considerable tract that was owned by Weyl and Zuckerman Avho were not parties to the organization and whose lands if then so owned were security for bonds issued against them.
It is disclosed by the evidence that the petitioner acquired the ■ Zuckerman land subject to a contract of sale at $125 per acre coupled with the condition that it must complete the reclamation works thereon at its own cost. This contract to sell was voluntarily renewed by the parties to it and provided that Weyl and Zuckerman should enter into possession and use in 1914, that they should make certain Xiayments specified as to due dates and amounts, that their total payments were to be reduced by the amount of outstanding reclama[1312]*1312tion bonds issued in payment of warrants assessed against the land, that the petitioner was to pay certain taxes on the land, and complete and maintain the reclamation works necessary to its use as a producing agricultural property, and that when all conditions had been met by both parties a deed conveying legal title from the petitioner to Weyl and Zuckerman would be made.
This agreement to sell appears to have been nothing more than an executory contract, the completion of which depended on conditions that had to be met as undertaken by each of the parties thereto. The failure of the proposing purchasers to make the required payments or to meet any other obligations imposed on them would result in the forfeiture of their rights under the contract. Likewise the failure of the petitioner to pay the taxes and construct and maintain the necessary reclamation works would relieve Weyl ancl Zuckerman from any liability to make the payments for which they had obligated themselves. During all the time before the execution or completion of the contract by the discharge of the several obligations accepted by each of the parties thereto -the legal title of record was in the petitioner and so remained until after the organization of the reclamation district. We are of the opinion that in all these circumstances the petitioner was the owner of record, within the requirements of the reclamation laws of California, at the date of the organization of the districts.
The Commissioner also contends that in addition to Weyl and Zuckerman, there were other owners of lands included within the reclamation districts at the date of the organization thereof. Prior to the organization of the reclamation districts the petitioner deeded 2% acres of land in each of the proposed districts to each of three of its employees and such deeds were duly recorded. Subsequently, but still prior to the organization of the districts these parcels of land were deeded back to the petitioner but such deeds were not placed of record. It appears therefore that at the date of the formation of the districts the petitioner was both the beneficial and the legal owner of such tracts and that only a title of record which had been destroyed by subsequent unrecorded deeds remained in its agents as individual owners and that such title was sufficient to satisfy the requirements of the reclamation laws of California which provide that only owners of record shall participate in the organi-sation of reclamation districts. It appears also that there were other small tracts included within the boundaries of the several districts that were not owned by the petitioner at the time of the formation of the districts. The evidence is conclusive, however, that no assessments were placed on such lands. No assessments were placed against any lands not owned by the petitioner and for every dollar realized from the reclamation district bonds received by the petitioner m [1313]*1313exchange for easements and other assets, its property was subject to a lien of like amount. These facts and conclusions also apply to the districts organized in 1919. We are of the opinion that our decision in the Rindge appeal, supra, is controlling here and that no taxable income was realized by transfers of the petitioner’s easements of real estate and title to personal property to the reclamation districts which it caused to be organized in 1918 and 1919.
All the terms and conditions of the contract for the sale of the Henning tract to Weyl and Zuckerman were met and discharged some time in 1919 and in that year the petitioner executed a deed conveying title to such lands to the purchaser. The petitioner contends that this transaction was completed at the date of the conveyance of title by deed. With this contention we have already agreed. We must now determine whether this sale completed in the year 1919 resulted in income to the petitioner, taxable in that year or whether a deductible loss was sustained. The petitioner contends that the fair market value or price of this tract at March 1, 1913, must be accepted as the basis for the computation of gain or loss from the completed transaction in the taxable year. If this is conceded there is a substantial loss.
It is true that the petitioner was the owner of record of the Hen-ning tract at March 1, 1913, and that we have found that the value of such tract at that date was $180 per acre. It is also true that the petitioner’s ownership at such date was subject to the conditions of a sales contract which fixed the sales price at $125 per acre, out of which the reclamation work was to be completed. All the coittractual obligations of the parties to the sales contract having been discharged, title passed in the taxable year. Gain or loss from that transaction must be determined by a comparison of the fair market value at March 1, 1913, plus capital expenditures thereafter with the purchase price received. At that date, entirely regardless of the actual fair market value of $180 per acre, the petitioner’s equity or interest in the tract was measured by the consideration set out in the sales contract. On the completion of that contract the petitioner received full payment in the amount determined by the terms thereof and realized from the transaction the full amount of value of his interest in the land at the basic date. We are of the opinion that within the meaning of the taxing statutes neither taxable gain nor deductible loss resulted from this transaction since the petitioner received from the completed sale neither more nor less than the value of its interest in the property at March 1, 1913, which, for the purposes of this proceeding, we hold was the fair market value of such interest at that date. The result we reach here is comparable to our decision in the Appeal of Charles P. Hewes, 2 B. T. A. 1279.
[1314]*1314In May, 1919, petitioner exchanged Mandeville Island for King Island. The area of the former was 5,430 acres and of the latter 3,290 acres. Mandeville Island had against it a reclamation bonded indebtedness of $396,140 and no money to its credit in the treasury. The grantee assumed this debt. King Island was free from debt. The respondent alleges that a profit of $378,862.84 accrued to the company by this transaction. The petitioner claims that the transaction was merely an exchange of capital assets, from which no taxable gain can result, but suggests a method for the determination of the gain or loss if its contention be overruled.
Under the title “ basis foe DETERMINING gain OR loss,” section 202 of the Revenue Act of 1918 provides as follows:
(a) That for the purpose of ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, the basis shall be—
(1) In the case of property acquired before March 1, 1913, the fair market price or value of such property as of that date; and
(2) In the ease of property acquired on or after that date, the cost thereof; or the inventory value, if the inventory is made in accordance with section 203.
(b) When property is exchanged for other property, the property received in exchange shall for the purpose of determining gain or loss be treated as the equivalent of cash to the amount of its fair market value, if any * * *.
These provisions govern as to this item. The properties both come within the purview of “(a)” and “(a) (1)”; they are real property. King Island comes within the purview of “(b).” No differentiation is made in the act as to kinds of real property or as to whether it constitutes capital assets or not. The Commissioner is clearly right in his contention that any ascertainable gain accruing to the petitioner in connection with the transaction is taxable; conversely, any loss is deductible. The act also provides the method of ascertaining the values of the properties exchanged.
We have found as a fact that the March 1, 1913, value of the land on Mandeville Island was $170 per acre and that the cost of the reclamation work added after that date and prior to the exchange was $70 per acre.
The Commissioner and the petitioner are agreed that the value of the land on King Island was $250 per acre at the date of exchange. We have, then, the value of Mandeville Island at March 1, 1913, was $923,100, which, with the cost of improvements made between that date and the exchange in 1919 in the amount of $380,100, gives a total basic cost of $1,303,200, against which there was a bond issue liability of $396,140 which was assumed by the grantee. For this property the petitioner received King Island with an area of 3,290 acres free from debt. The value of this tract at date of transfer was $250 per acre or a total of $822,500. It appears therefore that this [1315]*1315transaction resulted jki a loss to tbe petitioner in the amount of $84,560 which the petitioner is entitled to deduct from its gross income for the year 1919.
There are controversies regarding profits from land sales made by the petitioner during the taxable years. We have found the value of all such lands at March 1, 1913, and such value plus the cost of subsequent reclamation work prior to date of sale is the basis for determining gain or loss resulting from sales thereof. The terms of such sales and the amounts received therefrom may be introduced by the petitioner as elements in the computation under Rule 50 of its tax liability for the years in question.
Judgment will be entered on 80 days' notice, under Bule 50.
AnuNDELL and Milliken not participating.