BOOTH, Circuit Judge.
This is a peti-i tion for review of two orders of the Board of Tax Appeals redetermining deficiencies in the income taxes of petitioner. The first order covered the years 1918, 1919, and 1920, and redetermined deficiencies for those years in the amounts of $6,394.60, $13,937.41, and $7,309.46, respectively. The séeond order covered the year 1922, and redetermined the deficiency in the amount of $3,483.58. The two [749]*749matters were consolidated before tie Board of Tax Appeals for the purpose of hearing. They will be considered together here.
The deficiencies found by the Board of Tax Appeals were based upon the disallowance of certain deductions claimed by the petitioner as losses. The alleged losses consisted (1) of certain payments made by petitioner to his mother and to his aunt for their support during the years mentioned pursuant to the provisions of two written instruments; (2) of an amount paid by petitioner for advertising certain real estate owned by a corporation in which petitioner and others were interested.
The pertinent "provisions of the statutes are found in the Revenue Acts of 1918 (40 St. 1057) and 1921 (42 St. 227). They are identical and read as follows:
"See. 214. (a) That in computing net income there shall be allowed as deductions: »*»**«* »*
"(4) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in trade or business;
"(5) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in any transaction entered into for profit, though not connected with the trade or business.”
Article 141, Regulations 45, promulgated by the Treasury Department pursuant to the Revenue Act of 1918, contains the following provision, deemed material.
“Losses. — Losses sustained during the taxable year and not compensated for by insurance or otherwise are fully deductible * * * if (a) incurred in the taxpayer’s trade or business, or (b) incurred in any transaction entered into for profit. * * * They must usually be evidenced by elosed and completed transactions. * * * ”
The facts as found by the Board of Tax Appeals are, in substance, as follows: In 1905 the petitioner, his mother, Elizabeth Simpson Mastín, his aunt Julia Mastín, and his sister Theo Mastín, entered into an agreement of trust. It is set out in the margin, so far as here material.1 Pursuant to the terms of that agreement a corporation was organized under the name of the Mastín Realty & Mining Company, to which the parties conveyed all of the interests they had in certain properties. Another corporation was also organized for the purpose of holding the stock of the Mastín Realty & Mining Company. This corporation was known as the Mastín Estate; and to it the stock of [750]*750the Mastín. Realty & Mining Company was conveyed. The stoek of the holding company was held by the petitioner as trustee in accordance with the trust agreement. The petitioner managed and directed the corporations. He did considerable financing for the purpose of protecting the properties and the equities therein which had been conveyed to the first-named corporation. He arranged a loan of $400,000, which was secured by a bond issue. Only $272,000 of that amount, however, was needed and used by the corporation.' A number of the equities were sold and the proceeds applied to the payment of debts against other properties. Up until 1914 there was not enough income accruing to the corporation to meet the expenses. The petitioner’s mother and aunt needed funds for their living expenses and maintenance, As a consequence, another contract was entered into in 1914. Meanwhile Theo Mastín had married George Edgar Lovejoy. This second agreement is set out in full in the margin.* 2
[751]*751During the taxable years here in question, petitioner paid out the following
amounts as indicated:
To his mother and aunt, 1918......$12,346.64
1919 _______ 11,783.64
1920 ...... 14,852.24
1922 ...... 10,567.13
For advertising some of the real estate covered by the trust agreement ............ 4,245.25
The amounts paid to petitioner’s mother and aunt were for their support and were paid pursuant to the agreement of 1914.
Upon the facts thus found, and a finding to be mentioned later, relative to the payment for advertising, the Board of Tax Appeals held that the agreement of 1914 canceled the agreement of 1905. It held further that none of the payments above mentioned made by petitioner were deductible as losses under the statute above cited, and it redetermined the deficiencies of petitioner’s income tax for the years in question on the basis of disallowing as losses the payments above mentioned.
No question is raised as to the correctness of the figures, if the legal conclusions of the Board of Tax Appeals are right.
Upon this petition we do not review the facts found by-the Board of Tax Appeals, since there was substantial evidence to support them. We review questions of law only. Avery v. Commissioner of Internal Revenue (C. C. A.) 22 F.(2d) 6, 55 A. L. R. 1277; Royal Packing Co. v. Commissioner of Internal Revenue (C. C. A.) 22 F.(2d) 536.
The contentions of petitioner are:
First, that the agreement of 1905 was not and could not be canceled by the agreement of 1914, because the former agreement constituted an irrevocable trust and some of the parti® interested in the trust, to wit, the lineal heirs of Thomas Mastin and of Theo Mastin, did not join in the agreement of 1914.
[752]*752Second, that; the payments made by petitioner to his mother and aunt, and the one for advertising certain real estate, were all payments by petitioner while acting as trustee under the agreement of 1905 and while also acting under the agreement of 1914, and especially the clause thereof reading as follows: “Whereas said Thomas H. Mastín is willing to undertake the management and control of said shares of stock and properties and has this day agreed, and does hereby agree to undertake the management and control thereof, for the purpose of realizing an income and profit therefrom for the benefit and use of all the parties hereto” — and that the payments were “losses” within the provisions of section 214 (a) (4) and (5) of the act of 1918, above quoted.
We do not find it necessary to a decision of the ease at bar to determine the several interesting legal questions arising under petitioner’s first contention. We may assume for present purposes that the position of petitioner, that the agreement of 1905 was not canceled by the agreement of 1914, is correct. But the correctness of the second contention of petitioner does not necessarily follow from the correctness of the first.
Though the agreement of 1914 may not have canceled the agreement of 1905, yet it very materially modified the rights of some of the parties to that agreement. The agreement of 1914 recited that Julia Mastín and Elizabeth Mastín were owners of shares of stoek in Mastín Estate and in Mastín Realty & Mining Company and of other property.
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BOOTH, Circuit Judge.
This is a peti-i tion for review of two orders of the Board of Tax Appeals redetermining deficiencies in the income taxes of petitioner. The first order covered the years 1918, 1919, and 1920, and redetermined deficiencies for those years in the amounts of $6,394.60, $13,937.41, and $7,309.46, respectively. The séeond order covered the year 1922, and redetermined the deficiency in the amount of $3,483.58. The two [749]*749matters were consolidated before tie Board of Tax Appeals for the purpose of hearing. They will be considered together here.
The deficiencies found by the Board of Tax Appeals were based upon the disallowance of certain deductions claimed by the petitioner as losses. The alleged losses consisted (1) of certain payments made by petitioner to his mother and to his aunt for their support during the years mentioned pursuant to the provisions of two written instruments; (2) of an amount paid by petitioner for advertising certain real estate owned by a corporation in which petitioner and others were interested.
The pertinent "provisions of the statutes are found in the Revenue Acts of 1918 (40 St. 1057) and 1921 (42 St. 227). They are identical and read as follows:
"See. 214. (a) That in computing net income there shall be allowed as deductions: »*»**«* »*
"(4) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in trade or business;
"(5) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in any transaction entered into for profit, though not connected with the trade or business.”
Article 141, Regulations 45, promulgated by the Treasury Department pursuant to the Revenue Act of 1918, contains the following provision, deemed material.
“Losses. — Losses sustained during the taxable year and not compensated for by insurance or otherwise are fully deductible * * * if (a) incurred in the taxpayer’s trade or business, or (b) incurred in any transaction entered into for profit. * * * They must usually be evidenced by elosed and completed transactions. * * * ”
The facts as found by the Board of Tax Appeals are, in substance, as follows: In 1905 the petitioner, his mother, Elizabeth Simpson Mastín, his aunt Julia Mastín, and his sister Theo Mastín, entered into an agreement of trust. It is set out in the margin, so far as here material.1 Pursuant to the terms of that agreement a corporation was organized under the name of the Mastín Realty & Mining Company, to which the parties conveyed all of the interests they had in certain properties. Another corporation was also organized for the purpose of holding the stock of the Mastín Realty & Mining Company. This corporation was known as the Mastín Estate; and to it the stock of [750]*750the Mastín. Realty & Mining Company was conveyed. The stoek of the holding company was held by the petitioner as trustee in accordance with the trust agreement. The petitioner managed and directed the corporations. He did considerable financing for the purpose of protecting the properties and the equities therein which had been conveyed to the first-named corporation. He arranged a loan of $400,000, which was secured by a bond issue. Only $272,000 of that amount, however, was needed and used by the corporation.' A number of the equities were sold and the proceeds applied to the payment of debts against other properties. Up until 1914 there was not enough income accruing to the corporation to meet the expenses. The petitioner’s mother and aunt needed funds for their living expenses and maintenance, As a consequence, another contract was entered into in 1914. Meanwhile Theo Mastín had married George Edgar Lovejoy. This second agreement is set out in full in the margin.* 2
[751]*751During the taxable years here in question, petitioner paid out the following
amounts as indicated:
To his mother and aunt, 1918......$12,346.64
1919 _______ 11,783.64
1920 ...... 14,852.24
1922 ...... 10,567.13
For advertising some of the real estate covered by the trust agreement ............ 4,245.25
The amounts paid to petitioner’s mother and aunt were for their support and were paid pursuant to the agreement of 1914.
Upon the facts thus found, and a finding to be mentioned later, relative to the payment for advertising, the Board of Tax Appeals held that the agreement of 1914 canceled the agreement of 1905. It held further that none of the payments above mentioned made by petitioner were deductible as losses under the statute above cited, and it redetermined the deficiencies of petitioner’s income tax for the years in question on the basis of disallowing as losses the payments above mentioned.
No question is raised as to the correctness of the figures, if the legal conclusions of the Board of Tax Appeals are right.
Upon this petition we do not review the facts found by-the Board of Tax Appeals, since there was substantial evidence to support them. We review questions of law only. Avery v. Commissioner of Internal Revenue (C. C. A.) 22 F.(2d) 6, 55 A. L. R. 1277; Royal Packing Co. v. Commissioner of Internal Revenue (C. C. A.) 22 F.(2d) 536.
The contentions of petitioner are:
First, that the agreement of 1905 was not and could not be canceled by the agreement of 1914, because the former agreement constituted an irrevocable trust and some of the parti® interested in the trust, to wit, the lineal heirs of Thomas Mastin and of Theo Mastin, did not join in the agreement of 1914.
[752]*752Second, that; the payments made by petitioner to his mother and aunt, and the one for advertising certain real estate, were all payments by petitioner while acting as trustee under the agreement of 1905 and while also acting under the agreement of 1914, and especially the clause thereof reading as follows: “Whereas said Thomas H. Mastín is willing to undertake the management and control of said shares of stock and properties and has this day agreed, and does hereby agree to undertake the management and control thereof, for the purpose of realizing an income and profit therefrom for the benefit and use of all the parties hereto” — and that the payments were “losses” within the provisions of section 214 (a) (4) and (5) of the act of 1918, above quoted.
We do not find it necessary to a decision of the ease at bar to determine the several interesting legal questions arising under petitioner’s first contention. We may assume for present purposes that the position of petitioner, that the agreement of 1905 was not canceled by the agreement of 1914, is correct. But the correctness of the second contention of petitioner does not necessarily follow from the correctness of the first.
Though the agreement of 1914 may not have canceled the agreement of 1905, yet it very materially modified the rights of some of the parties to that agreement. The agreement of 1914 recited that Julia Mastín and Elizabeth Mastín were owners of shares of stoek in Mastín Estate and in Mastín Realty & Mining Company and of other property. The agreement further recited that they desired to divest themselves of the title to said shares of stoek and other property. The agreement provided that they did transfer, set over, and assign to Thomas Mastín and Theo Mastm Lovejoy all the right, title, and interest in and to the shares of stoek mentioned, with all dividends thereon accrued, and all other property by them owned. The agreement further provided that Thomas Mastín and Theo Mastín Lovejoy should pay the actual expenses and household maintenance and sustenance and support of Julia Mastín and Elizabeth Mastín during their natural lives respectively.
It is clear, therefore, that by the 1914 agreement Julia and Elizabeth Mastín (1) disposed of all their real and personal property, if any, to Thomas Mastín and Theo Mastín Lovejoy; (2) disposed of their rights to share equally with Thomas Mastín and Theo Mastín Lovejoy in the dividends from the trust properties for all future time; (3) surrendered all survivorship rights under the 1905 agreement in the corpus of the trust property. These various property rights passed from Julia Mastín and Elizabeth Mas-tin to Thomas Mastín and Theo Mastín Love-joy. In return and as consideration therefor Thomas Mastín and Theo Mastín Lovejoy agreed to furnish to Julia Mastín and Elizabeth Mastín support and maintenance without regard to the amount of dividends which might be paid from the trust estate.
Such being the character of the provisions in the agreement of 1914, can it be fairly said, that the above-mentioned payments made by petitioner to Julia Mastín and Elizabeth Mastín pursuant thereto should be considered “losses” within the statutes and regulations above quoted?
In the case of Mente v. Eisner (C. C. A.) 266 F. 161, 11 A. L. R. 496, the court, in construing a somewhat similar provision in the Revenue Act of 1913 (38 Stat. 114), used the following language in speaking of “losses”:
“We think that the language 'losses incurred in trade’ are correctly construed by the Treasury Department as meaning in the actual business of the taxpayer, as distinguished from isolated transactions. If it had been intended to permit all losses to be deducted, it would have been easy to say so. Some effect must be given to the words 'in trade.’ ”
This language has special application to provisions similar to those in section 214 (a) (4) of the Revenue Act of 1918, See, also, N. Y. Ins. Co. v. Edwards, 271 U. S. 109, 116, 46 S. Ct. 436, 70 L. Ed. 859.
We think, therefore, that the payments to the mother and aunt were not 'Tosses” within the meaning of section 214 (a) (4) of the Revenue Act of 1918.
It is true, however, that the Revenue Act of 1918 is broader than the act of 1913 by the inclusion of paragraph (5): “Losses sustained, during the taxable year * * * if incurred in any transaction entered into for profit, though not connected with the trade or business” — and it is claimed that the payments by petitioner to his mother and aunt were losses within the meaning of this paragraph. But such losses must come from closed and completed transactions. Article 141, Treasury Regulations 45, supra; United States v. White Dental Co., 274 U. S. 398, 47 S. Ct. 598, 71 L. Ed. 1120. See, also, Lewellyn v. Electric Reduction Co., 275 U. S. 243, 48 S. Ct. 63, 74 L. Ed. 262. It cannot properly be said that there was a series of completed transactions between Julia and Elizabeth Mastín on the one hand, and Thomas Mastín and Theo Mastín Lovejoy on the other. There was, in our opinion, but one [753]*753transaction. The consideration from Julia Mastín .and Elizabeth Mastín passed at onee and as a whole. The consideration from Thomas Mastín and Theo Mastín Love joy passed by installments. Whether there was a loss to Thomas Mastín and Theo Mastín Love-joy on the transaction eould not be told until the transaction was closed. It was not closed until the deaths of Julia Mastín and Elizabeth Mastín, which did not occur until 1922. When the proper event occurred after their deaths, it might then be determined whether the petitioner sustained a loss by the transaction, which he was entitled to deduct from his gross income in computing his current income tax. See United States v. Flannery, 268 U. S. 98, 45 S. Ct. 420, 69 L. Ed. 865. Such a claim is not involved in the case at bar.
The Board of Tax Appeals adopted the view that the payments by petitioner to his mother and his aunt were not “losses,” but payments for a capital asset. In its opinion attached to its findings it said:
“It is no different than if petitioner’s mother and aunt had sold the stock for a cash consideration. In that event it eould hardly have been contended that the cash paid for the stock was deductible as a loss unless or until the stock became worthless or the loss had been realized. Here the stock was to be paid for over an indefinite number of years until the death of the persons who were being paid for it.”
We are in accord with the views thus expressed, and hold that the payments made by petitioner to his mother and aunt were not losses within the meaning of section 214 (a) (4) or (5) of the Revenue Act of 1918. There was no showing that the property rights acquired by petitioner under the agreement of 1914 were worthless. The burden of proof was on the taxpayer [Royal Packing Co. v. Commissioner of Internal Revenue (C. C. A.) 22 E.(2d) 536], and the burden was not sustained.
As to the payment by petitioner for advertising certain of the real estate belonging to the corpus of the trust estate, the Board of Tax Appeals made the following finding of fact:
“The petitioner in 1919 paid out the sum of $4,245.25 to Brent & Crittenden, real estate agents, for advertising real estate owned by the Mastín Realty & Mining Company. The petitioner owned stock in the corporation but did not own any of the real estate which was to be advertised. The other stockholders of the corporation did not pay out anything in this connection. The petitioner paid out the money because he deemed it an advantageous movement for the corporation and its stockholders. The Mastín Realty & Min ing Company and others owned large property interests on the southern border of the principal business district of Kansas City. A movement was started by the parties to advertise this section. The amount so paid to Brent & Crittenden was to be distributed by them.”
The payment was therefore made, not by petitioner to advertise his own real estate, not by the corporation to advertise real estate owned by it, but by petitioner as a voluntary one. It was, in our opinion, a capital expenditure, whieh might enhance the value of petitioner’s stock by increasing the value of the lands of the corporation. It was not a loss within the meaning of the statute under discussion. Duffy v. Central R. Co. of N. J., 268 U. S. 55, 45 S. Ct. 429, 69 L. Ed. 846.
We think that the orders of the Board of Tax Appeals were correct, and they are affirmed.