Opinion
Docket Nos. 2242 2243.
1944-03-20
J. GREGORY DRISCOLL AND MILDRED W. DRISCOLL, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.MILDRED W. DRISCOLL, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
J. Gregory Driscoll pro se. J. Marvin Kelly, Esq., for the respondent.
The lessee of an oil lease mortgaged an interest in the lease to secure payment of his personal indebtedness to a bank, and assigned to the bank the oil to be produced thereunder for the purpose of having the income from the oil applied to the payment of the indebtedness. The interest of the original lessee in the lease was later assigned to petitioner, who took it subject to the mortgage and assignment. Held, petitioner is not taxable on the income thereafter paid to the bank and applied on the indebtedness. J. Gregory Driscoll pro se. J. Marvin Kelly, Esq., for the respondent.
The Commissioner determined deficiencies in income tax of J. Gregory Driscoll and Mildred W. Driscoll for the calendar year 1940, and of Mildred W. Driscoll for 1941, in the respective amounts of $177.81 and $442.58. The petitioners challenge the respondent's determination on the ground that amounts determined to be includable in their taxable incomes were not in fact received, actually or constructively, by them or either of them. The correctness of certain other adjustments is not now questioned.
FINDINGS OF FACT.
Petitioners are residents of St. Louis County, Missouri, and filed their income tax returns for the calendar years 1940 and 1941 with the collector at St. Louis. Since Mildred W. Driscoll is the taxpayer whose alleged income is the subject of this proceeding, she will be referred to hereinafter, for convenience and clarity, as the petitioner.
On January 19, 1939, the owners of certain land in Wabash County, Illinois, executed an oil and gas lease thereon to R. S. Hayes, of Evansville, Indiana, for a consideration, among others, of three-sixteenths of the oil and gas products of the land so leased. On May 27, 1940, R. S. Hayes and his wife executed a promissory note evidencing a loan of $10,000 from the First National Bank in St. Louis. The loan was to be repaid within one year in monthly installments of not less than $833.33. On the same day, to secure the payment of the note, the Hayeses also executed a mortgage on an undivided one-sixteenth interest in the oil and gas leasehold estate owned by Hayes and, as further security, the oil allocable to the one-sixteenth interest in the lease so mortgaged was assigned to the bank, with full power and authority to receive the proceeds of the oil and apply them to the payment of the monthly installments due under the note.
On June 1, 1940, R. S. Hayes assigned the same one-sixteenth interest in the lease for a valuable consideration to A. K. Swann, trustee, subject to the mortgage to the bank and to all the rights of the mortgagee.
On June 27, 1940, Swann assigned the same interest in the lease to Frank Y. Gladney of St. Louis, for a valuable consideration, by the terms of which assignment Gladney assumed and agreed to pay the mortgage indebtedness.
On October 23, 1940, Gladney assigned to petitioner ‘for and in consideration of One Dollar ($1.00) and other good and valuable consideration‘ the same one-sixteenth interest in the lease, which assignment contained the following paragraph:
The interest hereby conveyed is that same interest consisting of one-sixteenth (1/16) of the thirteen-sixteenths (13/16) Working Interest under said Lease-hold Estate above referred to covering the property above described, which was mortgaged to The First National Bank in St. Louis, St. Louis, Missouri, to secure the sum of Ten Thousand Dollars ($10,000) under the mortgage executed May 28, 1940, by R. S. Hays and Curtis J. Hays, his wife; and this Assignment is expressly made subject to all terms and conditions of said mortgage and all rights vested in the said mortgagee thereunder.
Shortly thereafter Gladney notified the Phillips Petroleum Co., which was operating the wells on the leased land of his transfer of his interest in the lease to petitioner, and authorized the company thereafter to make the payments for the oil to the First National Bank in St. Louis for the account of Mildred W. Driscoll.
All the payments made by the Phillips Petroleum Co. throughout the life of this interest in the lease, both before and after its acquisition by petitioner and until the indebtedness was completely paid, were made to the First National Bank and applied by it in accordance with the terms of the mortgage and assignment. On some occasions after the interest was conveyed to petitioner, when the amounts received by the bank from the oil company failed by a relatively small amount to equal the minimum monthly payment required by the note and mortgage, J. Gregory Driscoll, husband of petitioner, paid the difference when requested to do so by the bank. However, when such deficiencies became substantial in amount, he notified the bank that Mrs. Driscoll was not legally liable for the indebtedness, not having assumed it, and that he was unwilling to continue to pay such deficits.
The first payment was made on the indebtedness to the bank on August 7, 1940, and the entire indebtedness, principal and interest, was finally liquidated on September 24, 1941. Of the amount of $10,000, plus interest, so paid, the payments made by Driscoll aggregated $649.43. The payments made by the oil company to the bank after the transfer of the lease interest to petitioner and pursuant to the assignment totaled $1,784.21 in 1940 and $4,770.64 in 1941. The payments were described by the oil company in vouchers as ‘Mildred W. Driscoll's proportion of net earnings on the Shultz Lease.‘
OPINION.
KERN, Judge:
We conceive the problem presented here to be somewhat simpler than it seems to have appeared to the parties at the time of the hearing and briefing.
The respondent determined the petitioner to be taxable on certain payments made by the Phillips Petroleum Co. to the First National Bank in St. Louis in retirement of a $10,000 personal indebtedness incurred by an earlier owner of the one-sixteenth interest in an oil and gas lease now owned by petitioner. The indebtedness was evidenced by a promissory note, secured by a mortgage, executed by this former owner, on the one-sixteenth interest in the lease, and further secured by an assignment of the oil allocable to such one-sixteenth interest, the proceeds of which were to be applied to the payment of the indebtedness.
The one-sixteenth interest in the lease was thereafter sold by its owner, subject to the mortgage and assignment and the rights of the bank thereunder. The second owner of the interest sold it to a third, who, by the terms of his assignment, assumed and agreed to pay the indebtedness. He later sold the interest to this petitioner, who took it subject to the mortgage and the rights of the bank under the mortgage and assignment.
Throughout the period during which these transactions were taking place the payments for the oil being produced and allocable to this interest were being made monthly by the oil company to the bank, pursuant to the assignment, and applied by the bank to the reduction of the indebtedness. After the indebtedness was finally paid the payments were thereafter made to petitioner, who reported them and paid the tax due thereon. We are here concerned only with the payments made to the bank before the indebtedness incurred by Hayes was finally satisfied.
It is the petitioner's contention that, since she did not, according to the express terms of her assignment, assume or agree to pay the indebtedness, but took the property subject to the encumbrance of the mortgage and the assignment of the oil, she is not taxable on the payments made on the indebtedness, which was at all times the legal obligation of some other person.
We think the petitioner's position is impregnable. In acquiring the interest in the lease, subject to the mortgage and the assignment, she acquired no interest whatever in the oil which produced the income here in dispute. That oil had been validly assigned before she acquired her interest in the lease. The oil to which she was entitled under her assignment was the oil to be produced after the obligation to the bank was fully satisfied. Until that time, she was not entitled to any oil produced from the premises in question, or to its proceeds. She never received the income, nor any benefit from it. It was not at her disposal or subject to her dominion or control. She could not successfully have demanded its payment to her. The indebtedness upon which it was applied was not incurred by her, nor was it ever assumed by her as a personal liability. See P. T. Clary, 42 B.T.A. 1142.
It is true, as respondent points out, that the money was paid in to the bank by the oil company, after it was notified of the transfer to petitioner ‘for the account of Mildred W. Driscoll.‘ But it is clearly shown that it was not actually placed to her credit in any account subject to her order, but was used, as was intended by all the parties to all the transactions referred to, to pay the indebtedness to the bank incurred by Hayes and later assumed by Gladney. The money had always theretofore been similarly paid to and applied by the bank, although we are not advised as to the nominal identification of the fund prior to the transfer to petitioner of the interest in the lease. It is undisputed here that petitioner did not actually receive the money, nor was it placed at her disposal in any sense whatever. The name by which the account was called is unimportant, in view of these facts.
Respondent also relies on the fact that petitioner's husband made up deficiencies in certain payments received by the bank from the oil company which did not equal the minimum payments provided for in the note and mortgage. The evidence shows that he did so, upon the request of the bank, when the amounts were inconsequential, but that he did not intend thereby to admit or accept legal responsibility on behalf of petitioner for such payments is indicated by his subsequent refusal to pay later deficits, similar in character, but larger in amount, for the expressed reason that the petitioner was not, under his assignment, legally liable for the indebtedness. We conclude that petitioner is not the person who is taxable on the item of income here in question.
Reviewed by the Court.
Decision will be entered under Rule 50.