Commissioner v. Brown

380 U.S. 563, 85 S. Ct. 1162, 14 L. Ed. 2d 75, 1965 U.S. LEXIS 2449, 15 A.F.T.R.2d (RIA) 790

Opinions

Mr. Justice White

delivered the opinion of the

Court.

In 1950, when Congress addressed itself to the problem of the direct or indirect acquisition and operation of going businesses by charities or other tax-exempt entities, it was recognized that in many of the typical sale and leaseback transactions, the exempt organization was trading on and perhaps selling part of its exemption. H. R. Rep. No. 2319, 81st Cong., 2d Sess., pp. 38-39; S. Rep. No. 2375, 81st Cong., 2d Sess., pp. 31-32. For this and other reasons the Internal Revenue Code was accordingly amended in several respects, of principal importance for our purposes by taxing as “unrelated business income” the profits earned by a charity in the operation of a business, as well as the income from long-term leases of the business.¹ The short-term lease, however, of five years or less, was not affected and this fact has moulded many of the transactions in this field since that time, including the one involved in this case.²

The Commissioner, however, in 1954, announced that when an exempt organization purchased a business and leased it for five years to another corporation, not investing its own funds but paying off the purchase price with rental income, the purchasing organization was in danger of losing its exemption; that in any event the rental income would be taxable income; that the charity might be unreasonably accumulating income; and finally, and most important for this case, that the payments received by the seller would not be entitled to capital gains treatment. Rev. Rui. 54-420, 1954-2 Cum. Bull. 128.

This case is one of the many in the course of which the Commissioner has questioned the sale of a business concern to an exempt organization.³ The basic facts are undisputed. Clay Brown, members of his family and three other persons owned substantially all of the stock in Clay Brown & Company, with sawmills and lumber interests near Fortuna, California. Clay Brown, the president of the company and spokesman for the group, was approached by a representative of California Institute for Cancer Research in 1952, and after considerable negotiation the stockholders agreed to sell their stock to the Institute for $1,300,000, payable $5,000 down from the assets of the company and the balance within 10 years from the earnings of the company’s assets. It was provided that simultaneously with the transfer of the stock, the Institute would liquidate the company and lease its assets for five years to a new corporation, Fortuna Sawmills, Inc., formed and wholly owned by the attorneys for the sellers.⁴ Fortuna would pay to the Institute 80% of its operating profit without allowance for depreciation or taxes, and 90% of such payments would be paid over by the Institute to the selling stockholders to apply on the $1,300,000 note. This note was noninterest bearing, the Institute had no obligation to pay it except from the rental income and it was secured by mortgages and assignments of the assets transferred or leased to Fortuna. If the payments on the note failed to total $250,000 over any two consecutive years, the sellers could declare the entire balance of the note due and payable. The sellers were neither stockholders nor directors of Fortuna but it was provided that Clay Brown was to have a management contract with Fortuna at an annual salary and the right to name any successor manager if he himself resigned.⁵

The transaction was closed on February 4,1953. For-tuna immediately took over operations of the business under its lease, on the same premises and with practically the same personnel which had been employed by Clay Brown & Company. Effective October 31, 1954, Clay Brown resigned as general manager of Fortuna and waived his right to name his successor. In 1957, because of a rapidly declining lumber market, Fortuna suffered severe reverses and its operations were terminated. Respondent sellers did not repossess the properties under their mortgages but agreed they should be sold by the Institute with the latter retaining 10% of the proceeds. Accordingly, the property was sold by the Institute for $300,000. The payments on the note from rentals and from the sale of the properties totaled $936,131.85. Respondents returned the payments received from rentals as the gain from the sale of capital assets. The Commissioner, however, asserted the payments were taxable as ordinary income and were not capital gain within the meaning of I. R. C. 1939, § 117 (a)(4) and I. R. C. 1954, § 1222 (3). These sections provide that “[t]he term ‘long-term capital gain’ means gain from the sale or exchange of a capital asset held for more than 6 months . . . .”

In the Tax Court, the Commissioner asserted that the transaction was a sham and that in any event respondents retained such an economic interest in and control over the property sold that the transaction could not be treated as a sale resulting in a long-term capital gain. A divided Tax Court, 37 T. C. 461, found that there had been considerable good-faith bargaining at arm’s length between the Brown family and the Institute, that the price agreed upon was within a reasonable range in the light of the earnings history of the corporation and the adjusted net worth of its assets, that the primary motivation for the Institute was the prospect of ending up with the assets of the business free and clear after the purchase price had been fully paid, which would then permit the Institute to convert the property and the money for use in cancer research, and that there had been a real change of economic benefit in the transaction.⁶ Its conclusion was that the transfer of respondents’ stock in Clay Brown & Company to the Institute was a bona fide sale arrived at in an arm’s-length transaction and that the amounts received by respondents were proceeds from the sale of stock and entitled to long-term capital gains treatment under the Internal Revenue Code. The Court of Appeals affirmed, 325 F. 2d 313, and we granted certiorari, 377 U. S. 962.

Having abandoned in the Court of Appeals the argument that this transaction was a sham, the Commissioner now admits that there was real substance in what occurred between the Institute and the Brown family. The transaction was a sale under local law. The Institute acquired title to the stock of Clay Brown & Company and, by liquidation, to all of the assets of that company, in return for its promise to pay over money from the operating profits of the company. If the stipulated price was paid, the Brown family would forever lose all rights to the income and properties of the company. Prior to the transfer, these respondents had access to all of the income of the company; after the transfer, 28% of the income remained with Fortuna and the Institute. Respondents had no interest in the Institute nor were they stockholders or directors of the operating company. Any rights to control the management were limited to the management contract between Clay Brown and Fortuna, which was relinquished in 1954.

Whatever substance the transaction might have had, however, the Commissioner claims that it did not have the substance of a sale within the meaning of § 1222 (3). His argument is that since the Institute invested nothing, assumed no independent liability for the purchase price and promised only to pay over a percentage of the earnings of the company, the entire risk of the transaction remained on the sellers. Apparently, to qualify as a sale, a transfer of property for money or the promise of money must be to a financially responsible buyer who undertakes to pay the purchase price other than from the earnings or the assets themselves or there must be a substantial down payment which shifts at least part of the risk to the buyer and furnishes some cushion against loss to the seller.

To say that there is no sale because there is no risk-shifting and that there is no risk-shifting because the price to be paid is payable only from the income produced by the business sold, is very little different from saying that because business earnings are usually taxable as ordinary income, they are subject to the same tax when paid over as the purchase price of property. This argument has rationality but it places an unwarranted construction on the term “sale,” is contrary to the policy of the capital gains provisions of the Internal Revenue Code, and has no support in the cases. We reject it.

“Capital gain” and “capital asset” are creatures of the tax law and the Court has been inclined to give these terms a narrow, rather than a broad, construction. Corn Products Co. v. Commissioner, 350 U. S. 46, 52. A “sale,” however, is a common event in the non-tax world; and since it is used in the Code without limiting definition and without legislative history indicating a contrary result, its common and ordinary meaning should at least be persuasive of its meaning as used in the Internal Revenue Code. “Generally speaking, the language in the Revenue Act, just as in any statute, is to be given its ordinary meaning, and the words ‘sale’ and ‘exchange’ are not to be read any differently.” Helvering v. Flaccus Leather Co., 313 U. S. 247, 249; Hanover Bank v. Commissioner, 369 U. S. 672, 687; Commissioner v. Korell, 339 U. S. 619, 627-628; Crane v. Commissioner, 331 U. S. 1, 6; Lang v. Commissioner, 289 U. S. 109, 111; Old Colony R. Co. v. Commissioner, 284 U. S. 552, 560.

“A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent,” Iowa v. McFarland, 110 U. S. 471, 478; it is a contract “to pass rights of property for money, — which the buyer pays or promises to pay to the seller . . . ,” Williamson v. Berry, 8 How. 495, 544. Compare the definition of “sale” in § 1 (2) of the Uniform Sales Act and in § 2-106 (1) of the Uniform Commercial Code. The transaction which occurred in this case was obviously a transfer of property for a fixed price payable in money.

Unquestionably the courts, in interpreting a statute, have some “scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results ... or would thwart the obvious purpose of the statute.” Helvering v. Hammel, 311 U. S. 504, 510-511; cf. Commissioner v. Gillette Motor Co., 364 U. S. 130, 134, and Commissioner v. P. G. Lake, Inc., 356 U. S. 260, 265. But it is otherwise “where no such consequences would follow and where ... it appears to be consonant with the purposes of the Act . . . .” Helvering v. Hammel, supra, at 511; Ozawa v. United States, 260 U. S. 178, 194. We find nothing in this case indicating that the Tax Court or the Court of Appeals construed the term “sale” too broadly or in a manner contrary to the purpose or policy of capital gains provisions of the Code.

Congress intended to afford capital gains treatment only in situations “typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the entire gain in one year.” Commissioner v. Gillette Motor Co., 364 U. S. 130, 134. It was to “relieve the taxpayer from . . . excessive tax burdens on gains resulting from a conversion of capital investments” that capital gains were taxed differently by Congress. Burnet v. Harmel, 287 U. S. 103, 106; Commissioner v. P. G. Lake, Inc., 356 U. S. 260, 265.

As of January 31, 1953, the adjusted net worth of Clay Brown & Company as revealed by its books was $619,457.63. This figure included accumulated earnings of $448,471.63, paid in surplus, capital stock and notes payable to the Brown family. The appraised value as of that date, however, relied upon by the Institute and the sellers, was $1,064,877, without figuring interest on deferred balances. Under a deferred payment plan with a 6% interest figure, the sale value was placed at $1,301,989. The Tax Court found the sale price agreed upon was arrived at in an arm’s-length transaction, was the result of real negotiating and was “within a reasonable range in light of the earnings history of the corporation and the adjusted net worth of the corporate assets.” 37 T. C. 461, 486.

Obviously, on these facts, there had been an appreciation in value accruing over a period of years, Commissioner v. Gillette Motor Co., supra, and an “increase in the value of the income-producing property.” Commissioner v. P. G. Lake, Inc., supra, at 266. This increase taxpayers were entitled to realize at capital gains rates on a cash sale of their stock; and likewise if they sold on a deferred payment plan taking an installment note and a mortgage as security. Further, if the down payment was less than 30% (the 1954 Code requires no down payment at all) and the transaction otherwise satisfied I. R. C. 1939, § 44, the gain itself could be reported on the installment basis.

In the actual transaction, the stock was transferred for a price payable on the installment basis but payable from the earnings of the company. Eventually $936,131.85 was realized by respondents. This transaction, we think, is a sale, and so treating it is wholly consistent with the purposes of the Code to allow capital gains treatment for realization upon the enhanced value of a capital asset.

The Commissioner, however, embellishes his risk-shifting argument. Purporting to probe the economic realities of the transaction, he reasons that if the seller continues to bear all the risk and the buyer none, the seller must be collecting a price for his risk-bearing in the form of an interest in future earnings over and above what would be a fair market value of the property. Since the seller bears the risk, the so-called purchase price must be excessive and must be simply a device to collect future earnings at capital gains rates.

We would hesitate to discount unduly the power of pure reason and the argument is not without force. But it does present difficulties. In the first place, it denies what the tax court expressly found — that the price paid was within reasonable limits based on the earnings and net worth of the company; and there is evidence in the record to support this finding. We do not have, therefore, a case where the price has been found excessive.

Secondly, if an excessive price is such an inevitable result of the lack of risk-shifting, it would seem that it would not be an impossible task for the Commissioner to demonstrate the fact. However, in this case he offered no evidence whatsoever to this effect; and in a good many other cases involving similar transactions, in some of which the reasonableness of the price paid by a charity was actually contested, the Tax Court has found the sale price to be within reasonable limits, as it did in this case.⁷

Thirdly, the Commissioner ignores as well the fact that if the rents payable by Fortuna were deductible by it and not taxable to the Institute, the Institute could pay off the purchase price at a considerably faster rate than the ordinary corporate buyer subject to income taxes, a matter of considerable importance to a seller who wants the balance of his purchase price paid as rapidly as he can get it. The fact is that by April 30, 1955, a little over two years after closing this transaction, $412,595.77 had been paid on the note and within another year the sellers had collected another $238,498.80, for a total of $651,094.57.

Furthermore, risk-shifting of the kind insisted on by the Commissioner has not heretofore been considered an essential ingredient of a sale for tax purposes. In LeTulle v. Scofield, 308 U. S. 415, one corporation transferred properties to another for cash and bonds secured by the properties transferred. The Court held that there was “a sale or exchange upon which gain or loss must be reckoned in accordance with the provisions of the revenue act dealing with the recognition of gain or loss upon a sale or exchange/’ id., at 421, since the seller retained only a creditor’s interest rather than a proprietary one. “[T]hat the bonds were secured solely by the assets transferred and that; upon default, the bondholder would retake only the property sold, [did not change] his status from that of a creditor to one having a proprietary stake.” Ibid. Compare Marr v. United States, 268 U. S. 536. To require a sale for tax purposes to be to a financially responsible buyer who undertakes to pay the purchase price from sources other than the earnings of the assets sold or to make a substantial down payment seems to us at odds with commercial practice and common understanding of what constitutes a sale. The term “sale” is used a great many times in the Internal Revenue Code and a wide variety of tax results hinge on the occurrence of a “sale.” To accept the Commissioner’s definition of sale would have wide ramifications which we are not prepared to visit upon taxpayers, absent congressional guidance in this direction.

The Commissioner relies heavily upon the cases involving a transfer of mineral interests, the transferor receiving a bonus and retaining a royalty or other interest in the mineral production. Burnet v. Harmel, 287 U. S. 103; Palmer v. Bender, 287 U. S. 551; Thomas v. Perkins, 301 U. S. 655; Kirby Petroleum Co. v. Commissioner, 326 U. S. 599; Burton-Sutton Oil Co. v. Commissioner, 328 U. S. 25; Commissioner v. Southwest Exploration Co., 350 U. S. 308. Thomas v. Perkins is deemed particularly pertinent. There a leasehold interest was transferred for a sum certain payable in oil as produced, and it was held that the amounts paid to the transferor were not includable in the income of the transferee but were income of the transferor. We do not, however, deem either Thomas v. Perkins or the other cases controlling.

First, “Congress . . . has recognized the peculiar character of the business of extracting natural resources,” Burton-Sutton Oil Co. v. Commissioner, 328 U. S. 25, 33; see Stratton’s Independence, Ltd. v. Howbert, 231 U. S. 399, 413-414, which is viewed as an income-producing operation and not as a conversion of capital investment, Anderson v. Helvering, 310 U. S. 404, at 407, but one which has its own built-in method of allowing through depletion “a tax-free return of the capital consumed in the production of gross income through severance,” Anderson v. Helvering, supra, at 408, which is independent of cost and depends solely on production, Burton-Sutton, at 34. Percentage depletion allows an arbitrary deduction to compensate for exhaustion of the asset, regardless of cost incurred or any investment which the taxpayer may have made. The Commissioner, however, would assess to respondents as ordinary income the entire amount of all rental payments made by the Institute, regardless of the accumulated values in the corporation which the payments reflected and without regard for the present policy of the tax law to allow the taxpayer to realize on appreciated values at the capital gains rates.

Second, Thomas v. Perkins does not have unlimited sweep. The Court in Anderson v. Helvering, supra, pointed out that it was still possible for the owner of a working interest to divest himself finally and completely of his mineral interest by effecting a sale. In that case the owner of royalty interest, fee interest and deferred oil payments contracted to convey them for $160,000 payable $50,000 down and the balance from one-half the proceeds which might be derived from the oil and gas produced and from the sale of the fee title to any of the lands conveyed. The Court refused to extend Thomas v. Perkins beyond the oil payment transaction involved in that case. Since the transferor in Anderson had provided for payment of the purchase price from the sale of fee interest as well as from the production of oil and gas, “the reservation of this additional type of security for the deferred payments serve [d] to distinguish this case from Thomas v. Perkins. It is similar to the reservation in a lease of oil payment rights together with a personal guarantee by the lessee that such payments shall at all events equal the specified sum.” Anderson v. Helvering, supra, at 412-413. Hence, there was held to be an outright sale of the properties, all of the oil income therefrom being taxable to the transferee notwithstanding the fact of payment of part of it to the seller. The respondents in this case, of course, not only had rights against income, but if the income failed to amount to $250,000 in any two consecutive years, the entire amount could be declared due, which was secured by a lien on the real and personal properties of the company.⁸

There is another reason for us not to disturb the ruling of the Tax Court and the Court of Appeals. In 1963, the Treasury Department, in the course of hearings before the Congress, noted the availability of capital gains treatment on the sale of capital assets even though the seller retained an interest in the income produced by the assets. The Department proposed a change in the law which would have taxed as ordinary income the payments on the sale of a capital asset which were deferred over more than five years and were contingent on future income. Payments, though contingent on income, required to be made' within five years would not have lost capital gains status nor would payments not contingent on income even though accompanied by payments which were. Hearings before the House Committee on Ways and Means, 88th Cong., 1st Sess., Feb. 6, 7, 8 and 18, 1963, Pt. I (rev.), on the President’s 1963 Tax Message, pp. 154-156.

Congress did not adopt the suggested change ⁹ but it is significant for our purposes that the proposed amendment did not deny the fact or occurrence of a sale but would have taxed as ordinary income those income-contingent payments deferred for more than five years. If a purchaser could pay the purchase price out of earnings within five years, the seller would have capital gain rather than ordinary income. The approach was consistent with allowing appreciated values to be treated as capital gain but with appropriate safeguards against reserving additional rights to future income. In comparison, the Commissioner’s position here is a clear case of “overkill” if aimed at preventing the involvement of tax-exempt entities in the purchase and operation of business enterprises. There are more precise approaches to this problem as well as to the question of the possibly excessive price paid by the charity or foundation. And if the Commissioner’s approach is intended as a limitation upon the tax treatment of sales generally, it represents a considerable invasion of current capital gains policy, a matter which we think is the business of Congress, not ours.

The problems involved in the purchase of a going business by a tax-exempt organization have been considered and dealt with by the Congress. Likewise, it has given its attention to various kinds of transactions involving the payment of the agreed purchase price for property from the future earnings of the property itself. In both situations it has responded, if at all, with precise provisions of narrow application. We consequently deem it wise to “leave to the Congress the fashioning of a rule which, in any event, must have wide ramifications.” American Automobile Assn. v. United States, 367 U. S. 687, 697.

Affirmed.

1 The Revenue Act of 1950, c. 994, 64 Stat. 906, amended § 101 of the Internal Revenue Code of 1939 and added §§ 421 through 424, 3813 and 3814. These sections are now §§ 501 through 504 and 511 through 515 of the Internal Revenue Code of 1954.

2 The sale and leaseback transaction has been much examined. Lanning, Tax Erosion and the “Bootstrap Sale” of a Business-I, 108 U. Pa. L. Rev. 623 (1960); Moore and Dohan, Sales, Churches, and Monkeyshines, 11 Tax L. Rev. 87 (19561; MacCracken, Selling a Business to a Charitable Foundation, 1954 U. So. Cal. Tax Inst. 205; Comment, The Three-Party Sale and Lease-Back, 61 Mich. L. Rev. 1140 (1963); Alexander, The Use of Foundations in Business, 15 N. Y. U. Tax Inst. 591 (1957); New Developments in Tax-exempt Institutions, 19 J. Taxation 302 (1963). See also Stern, The Great Treasury Raid, p. 245 (1964).

3 Union Bank v. United States, 152 Ct. Cl. 426, 285 F. 2d 126; Commissioner v. Johnson, 267 F. 2d 382, aff'g Estate of Howes v. Commissioner, 30 T. C. 909; Kolkey v. Commissioner, 254 F. 2d 51; Knapp Bros. Shoe Mfg. Corp. v. United States, 135 Ct. Cl. 797, 142 F. Supp. 899; Oscar C. Stahl, P-H 1963 TC Mem. Dec. ¶63,201; Isis Windows, Inc., P-H 1963 TC Mem. Dec. ¶ 63,176; Ralph M. Singer, P-H 1963 TC Mem. Dec. ¶ 63,158; Brekke v. Commissioner, 40 T. C. 789; Royal Farms Dairy Co. v. Commissioner, 40 T. C. 172; Anderson Dairy, Inc. v. Commissioner, 39 T. C. 1027; Estate of Hawthorne, P-H 1960 TC Mem. Dec. ¶ 60,146; Estate of Hawley, P-H 1961 TC Mem. Dec. ¶ 61,038; Ohio Furnace Co. v. Commissioner, 25 T. C. 179; Truschel v. Commissioner, 29 T. C. 433. Some of these cases are now pending on appeal in one or more of the courts of appeals.

4 The net current assets subject to liabilities were sold by the Institute to Fortuna for a promissory note which was assigned to sellers. The lease covered the remaining assets of Clay Brown & Company. Fortuna was capitalized at $25,000, its capital being paid in by its stockholders from their own funds.

5 Clay Brown’s personal liability for some of the indebtedness of Clay Brown & Company, assumed by Fortuna, was continued. He also personally guaranteed some additional indebtedness incurred by Fortuna.

6 The Tax Court found nothing to indicate that the arrangement between the stockholders and the Institute contemplated the Brown family’s being free at any time to take back and operate the business.

7 In all but four of the cases listed in note 3, swpra, there was a finding that the price was within permissible limits. The exceptions are: Kolkey v. Commissioner, where the price was considered grossly excessive and the transaction a sham; Union Bank v. United States, in which the Court of Claims referred to the evidence of excessive price but nevertheless held a sale had taken place; Brekke v. Commissioner, where the seller was not before the court, the price was said to be twice the fair market value and the issue was the deducti-bility of the rent paid by the operating company to the exempt organization; and Estate of Hawley, in which there was no express treatment of the sale price, but the transaction was found to be a bona fide sale.

8 Respondents place considerable reliance on the rule applicable where patents are sold or assigned, the seller or assignor reserving an income interest. In Rev. Rul. 58-353, 1958-2 Cum. Bull. 408, the Service announced its acquiescence in various Tax Court cases holding that the consideration received by the owner of a patent for the assignment of a patent or the granting of an exclusive license to such patent may be treated as the proceeds of a sale of property for income tax purposes, even though the consideration received by the transferor is measured by production, use, or sale of the patented article. The Government now says that the Revenue Ruling amounts only to a decision to cease litigating the question, at least temporarily, and that the cases on which the rule is based are wrong in principle and inconsistent with the cases dealing with the taxation of mineral interests. We note, however, that in Rev. Rul. 60-226, 1960-1 Cum. Bull. 26, the Service extended the same treatment to the copyright field. Furthermore, the Secretary of the Treasury in 1963 recognized the present law to be that “the sale of a patent by the inventor may be treated as the sale of a capital asset,” Hearings before the House Committee on Ways and Means, 88th Cong., 1st Sess., Feb. 6,7, 8 and 18,1963, Pt. I (rev.), on the President’s 1963 Tax Message, p. 150, and the Congress failed to enact the changes in the law which the Department recommended.

These developments in the patent field obviously do not help the position of the Commissioner. Hor does I. R. C. 1954, § 1235, which expressly permits specified patent sales to be treated as sales of capital assets entitled to capital gains treatment. We need not, however, decide here whether the extraction and patent cases are irreconcilable or whether, instead, each situation has its own peculiar characteristics justifying discrete treatment under the sale and exchange language of § 1222. Whether the patent cases are correct or not, absent § 1235, the fact remains that this case involves the transfer of corporate stock which has substantially appreciated in value and a purchase price payable from income which has been held to reflect the fair market value of the assets which the stock represents.

9 It did, however, accept and enact another suggestion made by the Treasury Department. Section 483, which was added to the Code, provided for treating a part of the purchase price as interest in installment sales transactions where no interest was specified. The provision was to apply as well when the payments provided for were indefinite as to their size, as for example “where the payments are in part at least dependent upon future income derived from the property.” S. Rep. No. 830, 88th Cong., 2d Sess., p. 103. This section would apparently now apply to a transaction such as occurred in this case.