
    Empire Loan & Trust Co. and Empire Land Co., Petitioners, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 18410.
    Promulgated September 28, 1928.
    
      R. M. Cornwall, Esq., for the petitioners.
    
      Benton Baker, Esq., for the respondent.
   OPINION.

Lansdon :

The petitioners contend that the Commissioner erroneously determined that the transaction here in question resulted in taxable gain in 1918. Section 202(b) of the Revenue Act of 1918, so far as applicable here, is as follows:

When property is exchanged for other property, the property received in esKhange shall for the purpose of determining gain or loss he treated as the equivalent of cash to the amount of its fair market value, if any; * * *

Consideration of the above statutory provision convinces us that whether a deductible loss or a taxable gain results from an exchange of property is wholly a matter of fact. The Commissioner having determined that the transaction in question resulted in a taxable gain, the burden of proof in support of his contention is on the petitioner. No evidence as to the fair market value of the property received by the petitioner or of that exchanged therefor was offered at the hearing. The determination of the respondent is approved.

Decision will be entered for the respondent.  