Opinion
No. 8950.
Argued October 24, 1945.
Decided November 13, 1945.
On petition for Review of Decision of Board of Tax Appeals for the District of Columbia.
Proceeding by Wardman Real Estate Investment Corporation against the District of Columbia to review a decision of the District of Columbia Board of Tax Appeals sustaining an assessment of additional income tax.
Affirmed.
Mr. Joseph FitzGerald, Jr., of Washington, D.C., for petitioner.
Mr. Harry L. Walker, Assistant Corporation Counsel, District of Columbia, of Washington, D.C., with whom Mr. Vernon E. West, Corporation Counsel, District of Columbia, of Washington, D.C., was on the brief, for respondent. Mr. Richmond B. Keech, Corporation Counsel at the time the brief for the District was filed, of Washington, D.C., also appears thereon.
Before GRONER, Chief Justice, and CLARK and PRETTYMAN, Associate Justices.
This is a petition to review a decision of the District of Columbia Board of Tax Appeals. Petitioner is a Virginia corporation, with its principal place of business in the District of Columbia. Its appeal to us is from the assessment of additional income tax by the Assessor of the District in holding the profits of the sale of certain real estate to be ordinary income and therefore taxable. The applicable statute is § 6(b) of Title II, of the District of Columbia Revenue Act of 1939, 53 Stat. 1091, § 47 — 1506(b), D.C. Code 1940, and provides that:
"Gains and losses from the sale or exchange of property other than a capital asset shall be treated in the same manner as other income or deductible losses, and the basis for computing such gain or loss shall be the cost of such property or, if acquired by some means other than purchase, the fair market value thereof at the date of acquisition."
Substantially all of petitioner's income for many years prior to 1942 (the taxable year in question) accrued from the purchase and sale of real estate mortgage notes and from interest collected thereon. During the period 1929 through 1937 petitioner acquired thirty-three pieces of improved real estate as the result of default in the payment of indebtedness represented by mortgage notes. During the tax year 1942 petitioner realized gross profits of $12,227.44 in the sales of nine of the parcels of property, previously so acquired in foreclosure, and reported these gains as accruing through the sale of capital assets (non-taxable under the statute). The Board held that the gains from the real estate sold in 1942 in the District of Columbia, and acquired as above described, constituted income to the petitioner received in the ordinary course of its business, and concluded as a matter of law that the profits from such sales were taxable.
We are of opinion, for reasons more fully stated in Henry J. Robb, Inc., v. District of Columbia, ___ App.D.C. ___, 152 F.2d 283, decided simultaneously herewith, and where the facts are admittedly similar, that the Board's findings of fact and conclusions are clearly correct and should be affirmed.
Affirmed.