Speizer v. Commissioner , 3 B.T.A. 413 ( 1926 )

APPEAL OF LENA SPEIZER.

Speizer v. Commissioner

Docket No. 2389.

United States Board of Tax Appeals

3 B.T.A. 413; 1926 BTA LEXIS 2666;

January 21, 1926, Decided Submitted September 24, 1925.

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Benjamin Jarrett, Esq., for the taxpayer.

Robert A. Littleton, Esq., for the Commissioner.

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Before GRAUPNER and TRAMMELL.

This is an appeal from the determination of a deficiency in income tax in the amount of $8,560.70 for the year 1919. The deficiency results from the holding by the Commissioner that the taxpayer realized a taxable profit on the sale of certain property.

FINDINGS OF FACT.

The taxpayer is the widow of Mark Speizer, deceased, and the administratrix of his estate. At the death of Mark Speizer on July 5, 1919, he left surviving him the taxpayer and four minor children. George A. Gluck was appointed guardian of the four children. At the time of his death Mark Speizer owned a furniture and hardware store, which had a value of approximately $77,279.76.

Under the laws of the Commonwealth of Pennsylvania the taxpayer was entitled to a one-third interest, and the minor children were entitled to a two-thirds interest, in the estate of the decedent.

The Orphans' Court of Mercer County, Pa., issued an order on July 21, 1919, whereby the guardian was authorized to sell to the taxpayer the two-thirds interest of the minor children in the store for the sum of $10,000, the taxpayer to assume and pay the indebtedness then outstanding. On August 1, 1919, the taxpayer entered into a contract for the sale of the property for a consideration of $77,279.76, of which $45,279.76 was paid in cash and a note for $32,000 was given by the purchasers for the balance due. The excess of the cash payment over the inventory value of the stock in trade, book accounts, fixtures, etc., and the payments on the principal and interest on the note were treated by the taxpayer as belonging to the estate of her deceased husband and were listed in her first and partial account as administratrix as receipts belonging to the estate.

Pursuant to a petition of the taxpayer setting forth the facts relative to her administration of the estate, the Orphans' Court on May 5, 1925, issued an order annulling the authorization of sale of July 21, 1919, above mentioned, for the purpose of correcting the record and showing that the sale was for the benefit of the estate of the taxpayer's deceased husband.

DECISION.

The deficiency determined by the Commissioner is disallowed.