
    Elkins Fuel Co., Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 27310.
    Promulgated August 6, 1929.
    
      Louis F. Tanner, Esq., for the petitioner.
    
      L. A. Luce, Esq., for the respondent.
   Phillips:

The Comissioner determined a deficiency in income taxes for the calendar year 1922 in the amount of $2,038.70. Petitioner brings this proceeding for a redetermination of his tax liability. It is alleged the Commissioner erred, (1) in failing to allow the loss sustained by Stephen F. Elkins in January, 1922, from the operation of the Elkins Fuel Co. (individual ownership), which was in process of incorporation; and (2) in including in gross income the amount of $15,000 as profit from the sale of stock of the Virana Coal Co., which petitioner had acquired from Anna Pursglove Elkins. The first assignment of error was abandoned at the hearing.

FINDINGS OF FACT.

Petitioner is a corporation organized under tlie laws of West Virginia, with its principal place of business at 1847 Oliver Building, Pittsburgh, Pa. It is engaged in the business of marketing coal.

Petitioner was organized to take over the sales business of Stephen F. Elkins, which had theretofore been owned and operated by him as an individual under the name of the Elkins Fuel Co. It was incorporated January 30, 1922.

Stephen F. Elkins was general manager of the Elkins-Stone Coal Co., a corporation engaged in operating coal lands, from which position he resigned in 1921. During the years 1917, 1918, and 1919 he had acquired 200 shares of stock in this corporation of the par value of $20,000. Fifty shares of this stock was acquired for $5,000 in cash and 150 shares for services rendered by Elkins as general manager. In 1919 the Elkins-Stone Coal Co. changed its name to the Virana Coal Co. In 1919 Elkins gave to his wife, Anna Pursglove Elkins, the 200 shares of stock which he owned in the Virana Coal Co. In that same year Mrs. Elkins purchased an additional 100 shares of stock of the Virana Coal Co. for which she paid the par value of $10,000. At that time the stock of the Virana Coal Co. was worth $100 per share.

In February, 1922, Mrs. Elkins acquired 300 shares of the stock of petitioner, for which she gave in exchange the 300 shares of stock which she then held in the Virana Coal Co. At that time Elkins owned $25,000 par value of the stock of petitioner and there was a small amount, not over $2,000 par value, owned by others. The petitioner, in August, 1922, sold for $23,148 the 300 shares of stock of the Virana Coal Co. which it had acquired from Mrs. El-kins. In its return for 1922 it deducted $6,852 as a loss sustained on such sale.

The Commissioner determined that instead of sustaining a loss from the sale of this stock the petitioner realized a profit of $8,148.

Decision will be entered, for the respondent.  