Gambee v. Commissioner

*1235OPINION.

: The question in this appeal is solely one of fact. We must find the cost of the buildings in question for the purpose of determining the gain resulting from their sale.

The petitioner at the hearing was unable to produce his original checks and other original memoranda to show the precise cost of the buildings. At the time he made his return he did have that data but the same has been lost or destroyed. He did present, however, data prepared from his best recollection of the cost of the buildings. He was also able to produce the original plans as well as actual photographs of the houses built. Standing alone, this evidence would not have controlling weight, but it was corroborated by an expert builder and estimator whose testimony we are disposed to accept. The petitioner’s witness, Albert H. Smith, had been engaged in the business of contracting and building houses in and about White Plains for over 25 years. His reputation as a building cost expert was such that he was frequently used in the courts as a cost expert. He was also employed by fire insurance companies to estimate and adjust fire losses to buildings. His qualifications were conceded by the Commissioner. He personally inspected and appraised the buildings in question and appraised the eosts in excess of those claimed by the petitioner. The figures of the petitioner and the appraiser seem fair and certainly within the bounds of reason, when we take into consideration the style of house built, the sale price and the resulting gain. The petitioner’s own figures *1236show a profit of approximately 20 per cent on the amount invested. The Commissioner has determined a gain of $69,429.05 on an investment of $46,606.29, which on its face seems extremely abnormal in the absence of evidence of abnormal building profits in this district at the time in question. The method by which the Commissioner ascertained the cost is not disclosed, but we are convinced that the petitioner’s figures, which we have accepted in our findings of fact, are much more within the bounds of reason and, under the circumstances, should be used for the purpose of determining the gain.

Order of redetermination will he entered on 15 days’ notice, under Bule 50.