[29]*29OPINION.
Black :
We shall consider the questions in the order stated.
The respondent determined and contends that, under section 52 of the Kevenue Acts of 1934 and 1936, Williams, as successor assignee of the Louisville Property Co., was operating the entire property or business of that corporation and should have made returns for the said corporation for the taxable years 1935 and 1936 in the same manner and form as corporations are required to make returns. The material provisions of section 52 of both acts are identical and are set forth in the margin.1 In support of his determination and contention the respondent cites articles 22 (a)-21, 52-1, and 52-2 of Kegulations 86 and 94 (the material provisions of which are identical in both Regu[30]*30lations),2 and the cases of Will T. Caswell, 36 B. T. A. 816: Boggs-Burnam & Co., 26 B. T. A. 988; affirmed per curiam, 71 Fed. (2d) 999; and Northwest Utilities Securities Corporation, 27 B. T. A. 524;. affd., 67 Fed. (2d) 619; certiorari denied, 291 U. S. 684.
Petitioner contends that Williams, as successor assignee of the Louisville Property Co., was not operating the property or business of that corporation; that he was merely a trustee appointed by the court to liquidate the property of the corporation for the sole benefit of, first, the creditors, and then the stockholders of the Louisville Property Co., and that, under sections 161 and 142 of the Revenue Acts of 1934 and 1936, Williams correctly filed returns as a fiduciary* The material provisions of these sections of both acts are identical and are in the margin.3 In support of this contention petitioner cites In re Owl Drug Co., 21 Fed. Supp. 907, as being similar in many respects to petitioner’s position, and Fidelity National Bank & Trust Co 37 B. T. A. 473, and Merchants National Building Corporation, 45 B. T. A. 417, as two cases “on all fours with the instant case in all material respects.”
We have carefully considered the contentions of both parties and are of the opinion that the respondent’s determination *as to this ques[31]*31tion is correct. We think the facts here are substantially different from the facts in Merchants National Building Corporation, supra, and that, instead of that case supporting the petitioner’s view, it is authority for the respondent’s determination for the reason that the Board took particular pains to point out that if the May 31, 1934, transfer there had been a step toward dissolution the decision would have been the other way. We think the Merchants National Building Corporation case is clearly distinguishable on its facts from the instant case.
Likewise we think Fidelity National Bank & Trust Co., supra, is distinguishable. The trustees in that case were merely liquidating trustees of a part only of the assets of the Fidelity National Bank & Trust Co. of Kansas City, which corporation under its own charter was consolidated with another bank into a consolidated bank. They were not trustees in dissolution. We do not regard the case as of any assistance to the petitioner here.
In In re Owl Drug Co., supra, the court held that the trustee in bankruptcy there, having in a prior year sold the entire business theretofore conducted by the bankrupt, was no longer “operating the property or business” of the bankrupt corporation, and was not, therefore, required to file a return as a corporation under section 52 of the Revenue Act of 1934. That is not the situation here.
In the instant proceedings we think the evidence clearly shows that Williams was “operating the property or business” of the Louisville Property Co. within the meaning of the applicable statute and regulations, and we have so found as an ultimate fact. He was deriving income from sales of coal and timber, collecting rents, and entering into royalty contracts, and he disposed of approximately 32,000 acres of land in Bell County, Kentucky, by sale to the United States Government, all of which is authorized by the corporation’s charter. Furthermore, in the deed of assignment executed on November 6,1919, it was recited among other things that the Louisville Property Co. was indebted to the Louisville & Nashville Kailroad Co. in an amount of “considerably more than a million dollars” and that in consideration of the premises the assignor thereby assigned all of its property “to the assignee, its successors and assigns, absolutely and in fee simple, in trust for the payment of the debts of the Assignor and the expenses of administration and the distribution of the remainder, if any, of the proceeds of the sale of the assignor’s property to its stockholders.” There still remained a substantial amount of contested corporate debts at the time Williams was ap[32]*32pointed successor assignee. That condition still exists, and up to the ■date of this hearing there had been no distributions to the stockholders. Under such circumstances, Williams must be considered as acting for the corporation and not the stockholders. Boggs-Burnam & Co., supra, p. 994; Will T. Casswell, supra, p. 822. Cf. Hellebush v. Commissioner, 65 Fed. (2d) 902, and cases there cited. We hold, ■therefore, that Williams, as successor assignee in trust for the benefit •of the creditors and stockholders of the Louisville Property Co. in dissolution, should have made returns for that corporation under ; section 52 of the Revenue Acts of 1934 and 1936.
The second question involves petitioner’s right to percentage depletion for the taxable years 1935 and 1936 on coal mined from the "properties held by Williams as successor assignee. Petitioner con•cedes that it is not entitled to depletion based on cost, for no cost has been proved. Petitioner contends, however, it is entitled to a ■deduction for each year of percentage depletion under section 114 (b) (4) of the Revenue Acts of 1934 and 1936, respectively. The material provisions of this section, printed in the margin,4 are identical in both acts, with the exception that the last sentence printed therein is new in the 1936 Act. The “first return” of this taxpayer referred ■to in the statute is the return for the taxable year 1934, which should have been filed by the United States Trust Co. as assignee. The record is silent as to whether any return was filed for the year 1934, ¡and, if so, whether any election “to have the depletion allowance for such property for the taxable year for which the return is made ■computed with or without regard to percentage depletion” was or [33]*33was not made. Without proof of what was done relative to the taxable year 1934, the Board is not permitted to allow any deduction for percentage depletion for the taxable years 1935 and 1936. J. E. Riley Investment Co. v. Commissioner, 311 U. S. 55. Cf. last sentence of section 114 (b) (4) of the Bevenne Act of 1936, supra, and Tonopah Mining Co. of Nevada v. Commissioner, 127 Fed. (2d) 239.
The third question is whether the taxes paid in the name of H. C. Williams, assignee, Louisville Property Co., for the years 1935 and 1936 should be credited against the taxes determined by the respondent in this proceeding.
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[29]*29OPINION.
Black :
We shall consider the questions in the order stated.
The respondent determined and contends that, under section 52 of the Kevenue Acts of 1934 and 1936, Williams, as successor assignee of the Louisville Property Co., was operating the entire property or business of that corporation and should have made returns for the said corporation for the taxable years 1935 and 1936 in the same manner and form as corporations are required to make returns. The material provisions of section 52 of both acts are identical and are set forth in the margin.1 In support of his determination and contention the respondent cites articles 22 (a)-21, 52-1, and 52-2 of Kegulations 86 and 94 (the material provisions of which are identical in both Regu[30]*30lations),2 and the cases of Will T. Caswell, 36 B. T. A. 816: Boggs-Burnam & Co., 26 B. T. A. 988; affirmed per curiam, 71 Fed. (2d) 999; and Northwest Utilities Securities Corporation, 27 B. T. A. 524;. affd., 67 Fed. (2d) 619; certiorari denied, 291 U. S. 684.
Petitioner contends that Williams, as successor assignee of the Louisville Property Co., was not operating the property or business of that corporation; that he was merely a trustee appointed by the court to liquidate the property of the corporation for the sole benefit of, first, the creditors, and then the stockholders of the Louisville Property Co., and that, under sections 161 and 142 of the Revenue Acts of 1934 and 1936, Williams correctly filed returns as a fiduciary* The material provisions of these sections of both acts are identical and are in the margin.3 In support of this contention petitioner cites In re Owl Drug Co., 21 Fed. Supp. 907, as being similar in many respects to petitioner’s position, and Fidelity National Bank & Trust Co 37 B. T. A. 473, and Merchants National Building Corporation, 45 B. T. A. 417, as two cases “on all fours with the instant case in all material respects.”
We have carefully considered the contentions of both parties and are of the opinion that the respondent’s determination *as to this ques[31]*31tion is correct. We think the facts here are substantially different from the facts in Merchants National Building Corporation, supra, and that, instead of that case supporting the petitioner’s view, it is authority for the respondent’s determination for the reason that the Board took particular pains to point out that if the May 31, 1934, transfer there had been a step toward dissolution the decision would have been the other way. We think the Merchants National Building Corporation case is clearly distinguishable on its facts from the instant case.
Likewise we think Fidelity National Bank & Trust Co., supra, is distinguishable. The trustees in that case were merely liquidating trustees of a part only of the assets of the Fidelity National Bank & Trust Co. of Kansas City, which corporation under its own charter was consolidated with another bank into a consolidated bank. They were not trustees in dissolution. We do not regard the case as of any assistance to the petitioner here.
In In re Owl Drug Co., supra, the court held that the trustee in bankruptcy there, having in a prior year sold the entire business theretofore conducted by the bankrupt, was no longer “operating the property or business” of the bankrupt corporation, and was not, therefore, required to file a return as a corporation under section 52 of the Revenue Act of 1934. That is not the situation here.
In the instant proceedings we think the evidence clearly shows that Williams was “operating the property or business” of the Louisville Property Co. within the meaning of the applicable statute and regulations, and we have so found as an ultimate fact. He was deriving income from sales of coal and timber, collecting rents, and entering into royalty contracts, and he disposed of approximately 32,000 acres of land in Bell County, Kentucky, by sale to the United States Government, all of which is authorized by the corporation’s charter. Furthermore, in the deed of assignment executed on November 6,1919, it was recited among other things that the Louisville Property Co. was indebted to the Louisville & Nashville Kailroad Co. in an amount of “considerably more than a million dollars” and that in consideration of the premises the assignor thereby assigned all of its property “to the assignee, its successors and assigns, absolutely and in fee simple, in trust for the payment of the debts of the Assignor and the expenses of administration and the distribution of the remainder, if any, of the proceeds of the sale of the assignor’s property to its stockholders.” There still remained a substantial amount of contested corporate debts at the time Williams was ap[32]*32pointed successor assignee. That condition still exists, and up to the ■date of this hearing there had been no distributions to the stockholders. Under such circumstances, Williams must be considered as acting for the corporation and not the stockholders. Boggs-Burnam & Co., supra, p. 994; Will T. Casswell, supra, p. 822. Cf. Hellebush v. Commissioner, 65 Fed. (2d) 902, and cases there cited. We hold, ■therefore, that Williams, as successor assignee in trust for the benefit •of the creditors and stockholders of the Louisville Property Co. in dissolution, should have made returns for that corporation under ; section 52 of the Revenue Acts of 1934 and 1936.
The second question involves petitioner’s right to percentage depletion for the taxable years 1935 and 1936 on coal mined from the "properties held by Williams as successor assignee. Petitioner con•cedes that it is not entitled to depletion based on cost, for no cost has been proved. Petitioner contends, however, it is entitled to a ■deduction for each year of percentage depletion under section 114 (b) (4) of the Revenue Acts of 1934 and 1936, respectively. The material provisions of this section, printed in the margin,4 are identical in both acts, with the exception that the last sentence printed therein is new in the 1936 Act. The “first return” of this taxpayer referred ■to in the statute is the return for the taxable year 1934, which should have been filed by the United States Trust Co. as assignee. The record is silent as to whether any return was filed for the year 1934, ¡and, if so, whether any election “to have the depletion allowance for such property for the taxable year for which the return is made ■computed with or without regard to percentage depletion” was or [33]*33was not made. Without proof of what was done relative to the taxable year 1934, the Board is not permitted to allow any deduction for percentage depletion for the taxable years 1935 and 1936. J. E. Riley Investment Co. v. Commissioner, 311 U. S. 55. Cf. last sentence of section 114 (b) (4) of the Bevenne Act of 1936, supra, and Tonopah Mining Co. of Nevada v. Commissioner, 127 Fed. (2d) 239.
The third question is whether the taxes paid in the name of H. C. Williams, assignee, Louisville Property Co., for the years 1935 and 1936 should be credited against the taxes determined by the respondent in this proceeding. Petitioner contends that if it is held that it should be taxed as a corporation and not as a trust, “then it is certainly entitled to have the taxes paid deducted from the tax liability for the two years before any deficiency .can be determined.’* In support of this contention petitioner cites section 271 of the Bevenue Acts of 1934 and 1936.5 This section is identical in both acts.
It is, of course, fundamental that taxes overpaid by one taxpayer may not be credited against taxes due from a different taxpayer. Alexander Vayssie, 8 B. T. A. 587; Charles V. Parker, 17 B. T. A. 608; Robert C. Roebling, 28 B. T. A. 644, 656; Estate of Lucile Gruy, 42 B. T. A. 1279; Philadelphia Rapid Transit Co. v. United States, 10 Fed. Supp. 591; certiorari denied, 300 U. S. 664; Paul and Mertens, vol. 5, par. 51.33.
The respondent argues that “petitioner overlooks the simple fact that H. C. Williams individually is not the same taxpayer as the Louisville Property Company, H. C. Williams, Assignee” and cites. Estate of Lucile Gruy, supra, as authority for denying the credit.
We do not agree with the respondent that, when Williams filed the-income tax returns on Form 1040 mentioned in our findings in the name of H. C. Williams, assignee, Louisville Property Co., he was. acting for himself individually. Those were clearly not his individual returns, but were the returns he thought he was required to file-as successor assignee of the Louisville Property Co. In those returns: he did not report any of his individual income but only the income-he derived from operating the property or business of the Louisville Property Co. Clearly the Commissioner in his deficiency notice-[34]*34recognized that he was dealing with the same taxpayer and simply •determined that Williams as successor assignee should have filed returns as a corporation and not as a trust, and we have sustained that determination. We do not think the deficiencies in question ¿have been determined against any different “taxpayer” from the ■one who filed the returns mentioned in our findings and paid the taxes shown to be due thereon. The party that filed those returns •and paid the taxes was simply mistaken as to the proper form to •use. We hold that the respondent erred in not giving petitioner ■credit for the taxes paid for the years 1935 and 1936 in the respective .•amounts of $23.14 and $614.11, to the extent that such payments have not been refunded or otherwise credited. Cf. John W. Preston, 21 B. T. A. 840, 849.
In view of our holding on the first question it becomes unnecessary to consider the fourth question.
Decision will be entered imjer Bule 50.