Bernard A. Mitchell and Marjorie Mitchell v. The United States

408 F.2d 435, 187 Ct. Cl. 342, 23 A.F.T.R.2d (RIA) 918, 1969 U.S. Ct. Cl. LEXIS 139

Opinions

OPINION

PER CURIAM:

This case was referred to Trial Commissioner Lloyd Fletcher with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a). The commissioner has done so in an opinion and report filed on May 9, 1968. Exceptions to the commissioner’s opinion, findings of fact and recommended conclusion of law were filed by defendant and the ease has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case.'

Footnotes

•

* Therefore, plaintiffs are entitled to recover and judgment is entered for plaintiffs with the amount of recovery to be determined pursuant to Rule 47(c).

OPINION OF COMMISSIONER

FLETCHER, Commissioner:

In this income tax case the court is required to determine the proper treatment to be accorded legal and accounting expenses which were incurred by plaintiffs in the defense of a lawsuit where it was alleged that the taxpayer, Bernard A. Mitchell,¹ committed fraud in the sale of certain corporate stock. Mitchell contends that he is entitled to deduct those expenses under either Section 162(a) or Section 212 of the Internal Revenue Code of 1954. The Government responds that the expenses were capital expenditures incurred by Mitchell as a result of the disposition by him of capital assets and, hence, they must be treated as capital losses.

In the view I take of this case, the taxpayer is entitled to deduct the legal and accounting expenses in question under Section 162(a), and, hence, it is unnecessary to reach his alternate conten tion that, in all events, he is entitled to deduct them under Section 212. Section 162(a) provides, in pertinent part, as follows:

In General. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * *

It can be seen at a glance that in order to qualify for a deduction under this section, the expenses must be ordinary and necessary; they must be paid or incurred during the taxable year; and they must have been paid or incurred in the carrying on of a trade or business.

There is no dispute that the legal and accounting expenses involved were paid by Mitchell during the years in question. Also, under such decisions of the United States Supreme Court as Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171 (1943) and Commissioner of Internal Revenue v. Tellier, 383 U.S. 687, 86 S.Ct. 1118, 16 L.Ed.2d 185 (1966), there should be little question that such expenses were ordinary and necessary. The remaining question, therefore, is whether in the years involved Mitchell was engaged in a trade or business, and if he were so engaged, did the legal and accounting expenses paid by him arise out of the carrying on of such trade or business? The resolution of this remaining question requires a brief summary of Mitchell’s business activities and an analysis of the nature of the lawsuit which he was called upon to defend.

The essential facts are these. Many years ago, Mitchell founded the Mitchell Manufacturing Company (MMC). Originally, MMC was a manufacturer of table lamps but over the years the business was developed further into the manufacturing of fluorescent lighting fixtures, self-contained air conditioning units, and other products. Mitchell has always been the president and chief executive officer, as well as the major stockholder, of MMC from the time of its incorporation. He did not confine his business activities, however, to directing the affairs of MMC. He also became an officer and director in several other unrelated corporations from which he received substantial compensation. For example, during the period 1947-1954, he received salaries from four companies (including MMC), totaling about $68,000 per year.

The Cory Corporation was a competitor of MMC in the manufacture of air conditioning units. Sometime in 1955, representatives of Cory contacted Mitchell and advised him that Cory was interested in acquiring MMC at a price of approximately $2 million. Mitchell was impressed by this offer, and negotiations ensued between him and Cory’s representatives.

From the MMC side of the table, these negotiations were conducted by Mitchell almost exclusively in behalf of himself and the other MMC stockholders who weré members of his family. As MMC’s chief executive officer, the Cory representatives looked to Mitchell for the furnishing of information desired by them with respect to MMC’s operations and financial condition. During the course of the negotiations it became apparent that there was a question of possible contingent liabilities facing MMC for Federal excise and income taxes, as well as for product warranties. Mitchell recognized the possible existence of such liabilities, and he approximated them at $500,000. He therefore agreed to reduce the purchase price of the MMC stock by that amount.

On November 7, 1955, Mitchell and his fellow stockholders entered into a final agreement whereby they sold all their stock to Cory for $1,564,209.24. For his 22,590 shares, Mitchell received $658,-783.38 which he reported in his 1955 Federal income tax return as a long-term capital gain after deducting his basis and selling expenses therefrom. His treatment of this transaction on his tax return is not in dispute.

Thereafter, Mitchell continued to conduct his business activities as a corporate official, and he was connected with numerous corporations. He became associated in 1956 with a group of New York financiers, and together they started acquiring interests in various industrial corporations. One of these ventures was the acquisition by them in 1956 of a corporation in Atlanta, Georgia, presently known as Fulton Industries, Inc. At the time of the purchase negotiations, the attorney for the sellers made a complete investigation of Mitchell and his associates.

The attorney concluded that Mitchell was a hard working corporate executive, that his reputation for honesty and integrity in his business and personal dealings was the very best, and that he was a very capable businessman. Consequently, the purchase agreement was concluded and control of Fulton Industries passed to the Mitchell group. After having initially held other positions with Fulton, Mitchell is today its president, a member of its board of directors, and chairman of its executive committee. During this period of 1956-1958, Mitchell was also active in various other business corporations and real estate projects, both as a manager and investor. Since that time, he has continued to be well-known in the business world, both as a corporate executive and as a developer of various real estate projects.

In December 1958, Cory filed a suit in the Superior Court of Cook County, Illinois, against Mitchell and the other former shareholders of MMC. The complaint alleged that all of the defendants, and particularly Mitchell, had fraudulently misrepresented the facts relating to MMC’s liabilities for Federal income and excise taxes and for product warranties. It alleged, inter alia, that because of Mitchell’s fraud, deceit, misrepresentations, and concealments during the 1955 negotiations, The Cory Corporation had suffered damages in the total amount of at least $3,706,801.92. It concluded, however, that because Mitchell, in breach of his fiduciary relation to MMC, had allegedly kept the books and accounts of MMC in a careless and fraudulent manner so as to conceal its irregular transactions, it was impossible to ascertain Cory’s full damages.

Mitchell felt that this lawsuit constituted a vicious attack on his integrity and that he was required to defend to the utmost his business reputation in order that he might continue his work in the business world. Also, when the general counsel of Fulton Industries learned of the Cory v. Mitchell lawsuit, he expressed his grave concern to Mitchell. He pointed out that Fulton was a publicly-held company, the stock of which was about to be listed on the American Stock Exchange, and it was hoped by all concerned that it would eventually have a listing on the New York Stock Exchange. He advised Mitchell that, if the Cory charges' against him were proven, it would be necessary for Mitchell to resign from Fulton as one of its officers and directors. Mitchell replied that he was not guilty of any of the charges made by Cory, and he intended to defend the lawsuit to his last dollar. He retained the services of a large, well-known Chicago law firm, and the entire matter was bitterly contested in a long trial before the late Judge Sbarbaro of the Superior Court of Cook County.

On February 3, 1960, Judge Sbarbaro handed down an opinion finding the defendants, and specifically Mitchell, liable for fraud, intentional misrepresentations, and breach of warranty. However, he deferred fixing the total amount of damages. Judge Sbarbaro’s opinion began as follows:

PLAINTIFF, Corey [sic] Corporation, seeks to recover damages for fraud and breach of warranty in connection with the plaintiff’s purchase of all of the capital stock of the Mitchell Manufacturing Company, pursuant to the terms of a written contract dated November 7, 1955. * * * [Emphasis supplied.]

In his opinion, Judge Sbarbaro excoriated Mitchell for his part in the sale negotiations, and stated that:

The evidence overwhelmingly sustains the plaintiff’s contentions that the books and records were not kept in accordance with good accounting practices and that the Defendants deliberately and willfully concealed vital information from the Plaintiff for the purpose of inducing the Plaintiff to purchase their stock and succeeded in doing so.

While the opinion dealt only with liability and deferred determination of the total amount of Cory’s damages, there are figures referred to by Judge Sbar-baro in his opinion clearly indicating that he contemplated the entry of judgment against Mitchell and the other defendants far in excess of the $1,564,209.-24 sales price paid by Cory for the MMC stock.

After the opinion was filed, but before any further proceedings could be had, Judge Sbarbaro was killed in an airplane accident. Shortly thereafter, in February 1960, the litigation was settled by the payment of $1 million to Cory.

Negotiations leading to this settlement appear to have come about at the suggestion of Cory’s president. Mitchell had been shocked when he saw Judge Sbarbaro’s opinion and findings, and his first reaction was to appeal the decision. However, after discussing the matter with his wife and other members of the family, it was decided that he had been through so much in this litigation that settlement should be attempted.

On February 12, 1960, an agreement prepared by Mitchell’s lawyer was entered into between all the former stockholders of MMC. This agreement spoke in terms of reducing the purchase price of the MMC stock in the amount of $1 million and provided that Mitchell was to pay $678,000 of that amount, which was nearly $20,000 more than he had received for his MMC stock.

The settlement agreement between Mitchell and Cory also spoke in terms of reducing the purchase price paid for the MMC stock. It set forth the manner of repayment, required Cory to dismiss the pending litigation with prejudice, and to cooperate in procuring the expunging from the record of Judge Sbarbaro’s opinion. On March 22, 1960, the Superi- or Court of Cook County dismissed the case and ordered that Judge Sbarbaro’s opinion be expunged from the record.

In defending this lawsuit, Mitchell paid legal and accounting fees of $133,-564.16 in 1959, and $1,776.36 in 1960, and he deducted those amounts as ordinary deductions in his income tax returns for those years. The Commissioner of Internal Revenue determined that the expenses were capital expenditures, directly related to the 1955 sale of the MMC stock, which determination resulted in a net deficiency for the two years amounting to some $86,600. Mitchell paid that amount and filed a timely claim for refund. The claim was disallowed and this suit followed.

On this record there can be little doubt that Mitchell’s primary trade or business has always been that of being a corporate official. Such an activity constitutes the “carrying on” of a trade or business within the meaning of section 162(a). See Hochschild v. Commissioner, 161 F.2d 817 (2d Cir., 1947). But this, of course, does not end the inquiry. The question remains as to whether Mitchell incurred the disallowed expenses in carrying on his business, or whether, as the Government contends, the expenses were incurred in connection with a capital transaction, i.e., the sale of MMC stock to Cory, and, hence, were nondeduetible capital expenditures.

It is true, of course, that had it not been for the 1955 sale of MMC stock to Cory, there would have been no lawsuit, and Mitchell would have had no occasion to incur the litigation expenses in question. However, the Government’s automatic application of some sort of “but for” rule to this fact reflects a misunderstanding of the real issues involved in Cory v. Mitchell. Because of its concentration on the. 1955 stock sale rather than on the nature of the issues in the ensuing litigation, the Government has experienced that “Pavlovian reflex” which Judge Davis has warned us against in California & Hawaiian Sugar Refining Corp. v. United States, 311 F. , 159 Ct.Cl. 561, 574-575 (1962) , when he said:

The rule that legal expenditures are non-deductible when made in connection with certain “capital” transactions does not mean that, by a Pavlovian reflex, they must always be non-deductible when “capital” is involved, though the transaction and occasion differ radically.

The Government argues that the object of Cory’s suit was to obtain an adjustment of the purchase price which it had paid for the MMC stock. Clearly, this was not so. As was fully recognized by Judge Sbarbaro, Cory’s complaint was for damages for fraud and breach of warranty, and had nothing to do with title to the MMC stock, adjusting its purchase price, rescinding the transaction, or reforming the sales agreement. Cf. Manufacturers Hanover Trust Co. v. United States, 312 F.2d 785, 160 Ct.Cl. 582 (1963), cert. denied, 375 U.S. 880, 84 S.Ct. 150, 11 L.Ed.2d 111 (1963) . Indeed, the total amount of damages claimed by Cory far exceeded the amount which it had paid for the MMC stock. Particularly is it obvious in Count II of Cory’s complaint that the real thrust of Cory’s action was alleged fraudulent misrepresentations by Mitchell and a breach of his fiduciary obligations to MMC in his ca/pacity as its president and director2 Surely it is obvious that such allegations, if proved, could have a disastrous impact on Mitchell’s business career as a corporate officer. Understandably, this was his major concern, and it is small wonder that he advised the worried general counsel of Fulton Industries³ of his intention to defend the lawsuit “to his last dollar.” At this point, Mitchell’s position was analogous to that of the broker who was put to the cost of defending a lawsuit wherein he was charged with “ehurning” the portfolio of a trust under his supervision simply for the purpose of increasing his commissions. His expenses incurred in resisting the claim were held deductible under section 162. Ditmars v. Commissioner of Internal Revenue, 302 F.2d 481 (2d Cir., 1962).

The Government insists, however, that United States v. Gilmore, 372 U.S. 39, 83 S.Ct. 623, 9 L.Ed.2d 570 (1963) has conclusively established the principle that whether litigation costs of resisting a claim are “business” or “personal” must depend (in the words of the Supreme Court):

[O]n whether or not the claim arises in connection with the taxpayer’s profit-seeking activities. It does not depend on the consequences that might result to a taxpayer’s income-producing property from a failure to defeat the claim * * *. At p. 48, 83 S.Ct. at p. 629.

But the Government has overlooked the crucial point in Gilmore which is emphasized throughout the opinion. The “claim” which the taxpayer in that case had resisted was a divorce action, surely a most “personal” type of lawsuit. As the Court put it:

We turn then to the determinative question in this case: did the wife’s claims respecting respondent’s stock-holdings arise in connection with his profit-seeking activities ?

******

In classifying respondent’s legal expenses the court below did not distinguish between those relating to the claims of the wife with respect to the existence of community property and those involving the division of any such property. Supra, pp. 41-42. Nor is such a breakdown necessary for a disposition of the present case. It is enough to say that in both as pects the wife’s claims stemmed entirely from the marital relationship, and not, under any tenable view of things, from income-producing activity. [Emphasis partially supplied.] At p. 51, 83 S.Ct. at p. 631.

By contrast, in the present case, the issues raised by Cory’s claims against Mitchell not only arose out of his “profit-seeking activities,” they placed his business career in grave jeopardy. Accordingly, it must be clear that the fees paid by him fall within the category of “expenses resulting from the defense of a damage sui't"based on malpractice, or fraud, or breach of fiduciary duty” and, as such, are deductible under section 162. Commissioner of Internal Revenue v. Heininger, supra, 320 U.S. at page 472, 64 S.Ct. at page 253.

The Government relies strongly on the fact that in the settlement agreement entered into between Cory and the Mitchell group after Judge Sbarbaro had rendered his decision, the parties themselves referred to their settlement as a reduction of the purchase price for the MMC stock. Moreover, the Government points to the fact that in his 1960 income tax return Mitchell himself treated the amount paid by him under the settlement agreement as a “reduction of the selling price” of the MMC stock. See finding 15. The Government says these facts add up to an admission by Mitchell that the entire transaction was capital in nature and accuses him of inconsistency in treating his legal expenses differently than his settlement payment.

There is, however, no inconsistency. The difficulty with the Government’s argument is its apparent assumption that the disallowed expenses were connected with the settlement. The record is quite to the contrary. Mitchell incurred the expenses in question by employing lawyers and accountants to defend him against the charge that he had defrauded Cory and MMC, a claim which he regarded as endangering his business career of corporate official. That his defense before the trial court was unsuccessful is unimportant. Commissioner of Internal Revenue v. Tellier, supra.

Since Mitchell’s trial expenditures were unrelated to the settlement negotiations which followed after the adverse Sbarbaro opinion, in my judgment, he was entitled to treat the two differently.⁴ In this light, the nomenclature developed by the parties during the give-and-take of settlement negotiations to describe the reason for their settlement becomes irrelevant to a determination as to the nature of expenses incurred for an entirely different reason.

In support of its position, the Government relies heavily on the cases of Arrowsmith v. Commissioner of Internal Revenue, 344 U.S. 6, 73 S.Ct. 71, 97 L.Ed. 6 (1952) ; Towanda Textiles, Inc. v. United States, 180 F.Supp. 373, 149 Ct.Cl. 123 (1960) ; Munson v. McGinnes, 283 F.2d 333 (3d Cir., 1960), cert. denied, 364 U.S. 880, 81 S.Ct. 171, 5 L.Ed.2d 103 (1960) ; Spangler v. Commissioner of Internal Revenue, 323 F.2d 913 (9th Cir., 1963) ; and Rees Blow Pipe Mfg. Co. v. Commissioner of Internal Revenue, 342 F.2d 990 (9th Cir., 1965). The reliance is misplaced and no doubt stems from defendant’s insistence on looking solely at the settlement transaction and ignoring the litigation before Judge Sbarbaro as to which the disallowed expenses were incurred. It would lengthen this opinion unnecessarily to discuss each of these eases, for all apply the familiar principle of tax law that legal expenses incurred in lawsuits which involve only the transfer of capital assets must be capitalized and, for tax purposes, merely constitute an addition to the basis of the assets. As has been shown above, this rule is simply not applicable to the facts of this case. One of the defendant’s cases may be singled out to show the distinction which is equally applicable to all.

In Munson v. McGinnes, for example, the fees involved were paid for professional services in winning a litigated controversy about a sale of the stock of Williamsport Wire Rope Co. to Bethlehem Steel Co. The taxpayer was one of the selling stockholders. A few years later he and the other former Williams-port stockholders brought a suit to set aside the sale claiming that Bethlehem had defrauded them. The trial court found in their favor. Pending disposition of a motion for new trial, Bethlehem and the former stockholders, including the taxpayer, agreed to settle the controversy by Bethlehem paying an additional $6,000,000 to the Williamsport group. The taxpayer reported his share of the additional amount as capital gain and claimed a deduction for his legal fees under section 212. The court sustained the Government’s disallowance of the deduction and treated the litigation expenses as capital expenditures. In so holding, the court said:

Here there was no dispute as to what the original terms of sale were and no difficulty in obtaining the buyer’s compliance with them. Rather, there was a successful effort to establish that the original terms of sale were so unjust as a result of underlying fraud that equity should require their modification to provide the seller a larger consideration. We need not say * * * that the seller reacquired and resold the stock to conclude that what occurred was in substance and reality an equitable revision of the original terms of sale. Thus, the counsel fee in question was, to one in the seller’s position, an expense of modifying terms of sale, incurred as an essential incident of a capital transaction in the disposition of property. [Emphasis supplied.] 283 F.2d 335.

Unlike Munson, however, the issues litigated in Cory v. Mitchell did not involve “an equitable revision of the original terms of sale.” Cory went for much bigger game alleging that, because of Mitchell’s fraudulent misrepresentations, it was entitled to damages in excess of $3,700,000, considerably more than twice the amount Cory had paid for the MMC stock in the first place. To reiterate, it was in his unsuccessful defense of those charges that Mitchell incurred the expenses in question. The fact that later Cory and Mitchell settled their dispute on the basis of revising the stock purchase price is of no moment.

On the basis of the above opinion, plaintiffs are entitled to recover with the amount of recovery to be determined pursuant to Rule 47(c).

The dissenting opinion of NICHOLS, Judge, in which DAVIS, Judge, joins, follows the opinion of the Trial Commissioner which has been adopted by the court.

1

. Plaintiff wife, Marjorie Mitchell, is a party hereto solely by reason of her having filed joint tax returns with her husband for the years at issue. Accordingly, in this opinion, Bernard A. Mitchell is referred to either by his last name or as the “taxpayer.”

2

. Had lie been sued solely as one of the corporate shareholders, his liability seemingly would have been limited to the amount received by him for his stock. See, Allied Chemical Corporation v. Randall, 321 F.2d 320 (7th Cir., 1963).

3

. It will be recalled that, at this time, Mitchell was an officer and direeter of Fulton Industries and that the filing of the Cory complaint had placed his position with that company in jeopardy.

4

. In this connection, it is fair to note that, since Mitchell’s share of the settlement payment to Cory was considerably more than he had originally received for his MMC stock, he conceivably might have been entitled to claim an ordinary loss to the extent of the excess. Cf. Commissioner of Internal Revenue v. Switlik, 184 F.2d 299 (3d Cir., 1950). However, Mitchell did not take any such deduction on his 1960 tax return but merely computed his 1960 tax liability by making the allowable adjustments under section 1341.