Fedders Financial Corp. v. Director, Division of Taxation

476 A.2d 741, 96 N.J. 376, 1984 N.J. LEXIS 2672

• Court: Supreme Court of New Jersey
• Decided: June 4, 1984
• Status: Published

Opinions

The opinion of the Court was delivered by

SCHREIBER, J.

This case requires us to interpret provisions of the New Jersey Corporation Business Tax Act (the Act). Under the Act the tax is measured by a corporation’s net worth and net income. One provision in dispute made a corporation’s “indebtedness owing directly or indirectly” to holders of 10% or more of the corporation’s outstanding shares includible in the corporation’s net worth. N.J.S.A. 54:10A-4(d). The other disputed provision stated that 90% of the amount paid in interest on such indebtedness may not be excluded in computing its net income. N.J.S.A. 54:10A-4(k)(2)(E). At issue is the meaning of the phrase “owing directly or indirectly” in the context of a corporation’s debts owing to an affiliated (nonparent) company.

The Director of the New Jersey Division of Taxation, Department of the Treasury (the Director), determined that plaintiff Fedders Financial Corporation in computing its tax liability under the Act should have included, as part of its “net worth” pursuant to N.J.S.A. 54:10A-4(d) and -4(e), a debt owed to plaintiff’s wholly owned subsidiary; should not have excluded, when calculating “net income” under N.J.S.A. 54:10A-4(d) and -4(e), a debt owed to plaintiff’s wholly owned subsidiary; and should not have excluded, when calculating “net income” under N.J.S.A. 54:10A-4(k)(2)(E) and -4(e), 90% of the interest on this debt. The Director assessed deficiencies, including interest, that aggregated $587,483 for the taxpayer’s fiscal years ending August 31, 1972, 1973, and 1974. The plaintiff taxpayer’s appeal to the existing Division of Tax Appeals was transferred, in accordance with N.J.S.A. 2A.3A-26, to the Tax Court, which affirmed. 3 N.J. Tax 576 (1981). In an unpublished per curiam opinion the Appellate Division affirmed, substantially for the reasons given in the Tax Court’s opinion. We granted plaintiff’s petition for certification. 93 N.J. 267 (1983).

I

The facts were stipulated. Plaintiff, whose principal office is in New Jersey, is a wholly owned subsidiary of Fedders Corporation (Fedders). Plaintiff was formed in 1959 to finance the wholesale and retail commercial paper generated by the sale of air conditioners and other products manufactured by Fedders.

Plaintiff was originally capitalized with $2,000,000, of which $100,000 was ascribed to capital stock and $1,900,000 designated as capital surplus. The parent, Fedders, not only contributed the $2,000,000, but also loaned to the plaintiff an additional $3,000,000.

In 1972 plaintiff, needing additional funds, decided to tap foreign sources, commonly known as the Eurodollar market. Under the federal income tax law domestic corporations had to withhold federal income taxes from the interest paid to foreign lenders. I.R.C. §§ 1441, 1442 (1982). However, no withholding was required on interest paid to foreign lenders by a foreign corporation. Therefore, it was advantageous for domestic corporations to create foreign corporations that would borrow the necessary dollars from foreign investors who would then be more likely to invest in these enterprises.

The Netherlands Antilles frequently has been used as the country of incorporation of an offshore finance subsidiary. In addition to the Antilles corporation’s avoiding the requirement of withholding under the United States federal tax laws, a tax treaty between the Netherlands and the United States eliminates the 30% United States withholding tax on United States corporate interest received by an Antilles corporation, provided the interest income is not “effectively connected” with a United States “permanent establishment.” Income Tax Convention, Apr. 29, 1948, United States-Netherlands, art. VIII(1), (2), reprinted in 2 Tax Treaties (CCH) ¶ 5812. The United States corporation thus can pay interest to an Antilles corporation on money loaned to it by the Antilles corporation without withholding any federal income taxes. Moreover, the Antilles government does not impose any withholding tax on interest paid by an Antilles corporation to its foreign bondholders, and does not impose an estate or inheritance tax on nonresidents with respect to the debt obligations of an Antilles corporation. Finally, the Antilles has a relatively low corporate income tax rate, and has no currency or exchange controls. Curacao International Trust Co. N.V., An Introduction to the Taxation of Offshore Companies in the Netherlands Antilles (2d ed. 1977).

In March 1972, plaintiff, to attract foreign capital, formed Fedders Capital N.Y., a Netherlands Antilles corporation (Fedders Capital). Plaintiff capitalized Fedders Capital with $6,000,-000, which was recorded on Fedders Capital’s books as capital stock and capital surplus.

In April 1972, Fedders Capital sold $30,000,000 of debentures in the European Common Market. Under the offering’s terms the debentures bore interest at 5% a year and matured on May 1, 1992. Fedders (plaintiff’s parent) guaranteed the principal and interest payments, although the guarantee was subordinated to the prior payment in full of all of its senior indebtedness. The debentures were convertible at $47.25 per share into Fedders’ common stock, which was publicly traded on the New York Stock Exchange.

After Fedders Capital sold the debentures, it made the following loans to its parent, the plaintiff:

Date Interest Rate Amount Maturity

5/4/72 5% $22,500,000 5/4/87

5/4/72 5% 6.500.000 1/29/73

8/3/73 5% 9.500.000 10/31/74

11/7/73 9V2% 600,000 10/31/74

6/21/74 5% 3.200.000 5/4/87

The plaintiff used the funds to discharge Eurodollar loans and to reduce its short-term United States bank obligations. For the fiscal year ending August 31, 1972 the plaintiff’s indebtedness to Fedders Capital was $29,000,000 and the interest paid on such indebtedness was $471,251; for the fiscal year ending August 31, 1973 the plaintiff’s indebtedness to Fedders Capital was $32,000,000 and the interest paid on such indebtedness was $1,599,350; and for the fiscal year ending August 31, 1974 the plaintiff’s indebtedness to Fedders Capital was $35,-800,000 and the interest paid on such indebtedness was $1,677,-503. The sources of these funds loaned by Fedders Capital to plaintiff were principally the $30,000,000 obtained from the sale of the convertible debentures and the $6,000,000 with which the plaintiff had originally capitalized Fedders Capital.

II

The Corporation Business Tax Act, N.J.S.A. 54:10A-1 to -32, enacted in 1945, requires that a corporation shall pay an annual franchise tax “for the privilege of having or exercising its corporate franchise in this State, or for the privilege of doing business, employing or owning capital or property, or maintaining an office, in this State.” N.J.S.A. 54:10A-2. Calculation of the tax was based in part upon a percentage of the corporation’s “net worth” or “net income.”

“Net worth” was defined as

the aggregate of the values disclosed by the books of the corporation for (1) issued and outstanding capital stock, (2) paid-in or capital surplus, (3) earned surplus and undivided profits, (4) surplus reserves which can reasonably be expected to accrue to holders or owners of equitable shares, not including reasonable valuation reserves, such as reserves for depreciation or obsolescence or depletion, and (5) the amount of all indebtedness owing directly or indirectly to holders of 10% or more of the aggregate outstanding shares of the taxpayers’ capital stock of all classes, as of the close of a calendar or fiscal year. [N.J.S.A. 54:10A-4(d) (emphasis added).]

The definition was amended on June 30, 1982 by eliminating item (5) above, L. 1982, c. 55, § 1, effective as of July 1, 1984, id. § 3. However, item (5) is relevant and material in this case, which involves taxes for prior years.

The statute also provided that “entire net income”

shall be determined without exclusion, deduction or credit of:

(E) 90% of interest on indebtedness owing directly or indirectly to holders of 10% or more of the aggregate outstanding shares of the taxpayer’s capital stock of all classes; except that such interest may, in any event, be deducted

(i) up to an amount not exceeding $1000.00;

(ii) in full to the extent that it relates to bonds or other evidences of indebtedness issued, with stock, pursuant to a bona fide plan or reorganization, to persons, who, prior to such reorganization, were bona fide creditors of the corporation or its predecessors, but were not stockholders or shareholders thereof; * * *. [N.J.S.A. 54:10A-4(k)(2).]

This section has remained in place except for the addition of three more exclusions, none of which is pertinent. L.1979, c. 76, § 1; L.1979, c. 388, § 12; L.1981, c. 259, § 1; L.1981, c. 467, § 1.

“Indebtedness owing directly or indirectly” was defined to

include, without limitation thereto, all indebtedness owing to any stockholder or shareholder and to members of his immediate family where a stockholder and members of his immediate family together or in the aggregate own 10% or more of the aggregate outstanding shares of the taxpayer’s capital stock of all classes. [N.J.S.A. 54:10A-4(e).]

The Director promulgated two regulations interpreting the above statutory provisions. N.J.A.C. 18:7—4.5(d) provided that indebtedness is includible if the taxpayer and its creditor are both substantially owned or controlled by the same interests, or if the creditor is controlled directly or indirectly by holders of 10% or more of the taxpayer’s outstanding stock.¹ Similarly, N.J.A.C. 18:7-5.2(a)(7) provided that 90% of such indebtedness may not be deducted as an expense in computing the taxpayer’s net income.²

It has been the consistent position of the Director that all indebtedness owed by a taxpayer corporation to an affiliated corporation (which includes indebtedness owed by a subsidiary to a parent corporation, by a brother to a sister corporation when both are owned by a common parent, or by a corporation to its subsidiary when both are owned directly or indirectly through corporate instrumentalities by a common parent) should be factored into the computation of a taxpayer’s net worth tax base under section 54:10A-4(d) of the Act. Similarly, the Director has refused pursuant to section 54:10A-4(k)(2)(E) to exclude from a taxpayer’s “net income” 90% of the interest that the taxpayer pays its affiliated corporation on such indebtedness.

Ill

The legal issues are what constitutes “indebtedness owing directly or indirectly” between a corporation and its wholly owned subsidiary, and whether the Director’s interpretative regulations concerning that phrase are consonant with the statutory provision.

Two principles of statutory interpretation are relevant to our analysis of this taxing statute. First, the court should follow the clear import of statutory language. In re Jamesburg High School Closing, 83 N.J. 540, 547 (1980). Second, when interpretation of a taxing provision is in doubt, and there is no legislative history that dispels that doubt, the court should construe the statute in favor of the taxpayer. We applied those guidelines in Kingsley v. Hawthorne Fabrics, 41 N.J. 521 (1964), when interpreting two of the same provisions that are under consideration here, N.J.S.A. 54:10A-4(d) and -4(e). In Kingsley, supra, 41 N.J. at 528-29, we quoted approvingly the following language from Gould v. Gould, 245 U.S. 151, 153, 38 S.Ct. 53, 53, 62 L.Ed. 211, 213 (1917):

In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen.

The Gould principle that statutes levying taxes should be construed against the government in case of doubt has been subject to some criticism.³ Griswold,’ “An Argument Against the Doctrine that Deductions Should be Narrowly Construed as a Matter of Legislative Grace,” 56 Harv.L.Rev. 1142 (1943); Note, “Statutory Construction: Presumptions: Interpretation of Tax Statutes,” 42 Cornell L. Q. 589 (1957). We continue to adhere to the view that our task is to ascertain the legislative intent. When the statutory language is unclear and the legislative history is wanting, the doubt referred to in Gould exists and its principle is applicable. This situation is to be distinguished from the one in which the taxpayer seeks an exemption from a taxing statute. Then the probable legislative intent is one of inclusion and exemptions are to be construed narrowly. Boy’s Club of Clifton v. Township of Jefferson, 72 N.J. 389, 398 (1977).

In Kingsley, supra, 41 N.J. 521, the taxpayer, Hawthorne Fabrics, Inc. (“Hawthorne”), was owned by Isaac and Matilda Brawer, husband and wife. Isaac Brawer’s two brothers, Irving and Louis Brawer, were the sole stockholders of Brawer Bros. Silk Co. (Brawer). Hawthorne and Brawer did business with each other, as a result of which on December 31, 1957 Hawthorne was indebted to Brawer. Id. at 523. The Director’s attempt to increase Hawthorne’s net worth by the amount of that indebtedness was rejected. The statute, then as now, included in the taxpayer's net worth indebtedness owing directly or indirectly to a 10% stockholder or to “members of his immediate family.” We interpreted the word “family” narrowly to include only those “living together in one home, in a permanent and domestic character, under one head.” Id. at 527. The Director argued that a broader interpretation of “immediate family” was consistent with the underlying policy of the statute, since deficit financing can be effected by loans from brothers as well as from members of the stockholder’s household. We refused to accept that contention and quoted from Public Service Coordinated Transp. v. State Bd. of Tax Appeals, 115 N.J.L. 97, 104 (Sup.Ct.1935): “The legislative body must express its intention to tax in distinct and unambiguous language.” 41 N.J. at 529-30.

We have required such specificity in other comparable situations. General Public Loan Corp. v. Director, Div. of Taxation, 13 N.J. 393 (1953), concerned a taxpayer, a wholly owned subsidiary of American Investment Company of Illinois (American), that was engaged in the small loan business. The taxpayer borrowed funds from time to time from its parent American. The Director included the amount of indebtedness as of December 31, 1947 in the calculation of the taxpayer’s net worth under the Financial Business Tax Law, L.1946, c. 174, § 2, which contained substantially the same definition of net worth as in the Corporation Business Tax Act. We affirmed that determination despite American’s protestation that it had borrowed the monies from banks and insurance companies, which were the real creditors. The literal language of the statute compelled the result because the indebtedness was owed directly from the taxpayer to its parent.

In R.H. Macy & Co. v. Director, Div. of Taxation, 77 N.J.Super. 155 (App.Div.1962), aff’d o.b., 41 N.J. 3 (1963), R.H. Macy, the taxpayer, sought to deduct from its net worth indebtedness owed to it by its wholly owned subsidiary under a provision of the Corporation Business Tax Act. 77 N.J.Super. at 173. The Act permitted a taxpayer that held capital stock of a subsidiary to deduct from its (the parent’s) net worth the average value of “such holdings” less net liabilities owed to the subsidiary. N.J.S.A. 54:10A-9. The Director was upheld because “such holdings” was construed to refer only to capital stock and not to indebtedness owed to a parent by a subsidiary. Judge Conford, writing for the Appellate Division, observed that neither the administrative agency nor the court could take liberties with the statutory language “even to subserve a supposedly desirable policy not effectuated by the act as written.” 77 N.J.Super. at 173.

Other opinions have adopted the same analysis by reading literally the taxing statute. In Somerset Apartments, Inc. v. Director, Div. of Taxation, 134 N.J.Super. 550, 552 (App.Div.1975), a corporation held title to an apartment complex as nominee of seven partners. The partners had transferred title to the corporation that they had organized in order to mortgage the complex at interest rates above the legal limit for individual borrowers. Id. at 553. The Appellate Division refused to recognize the corporation’s nominee status. The court determined that the form of the ownership was corporate, and therefore the corporation was properly subject to the corporation business tax on the real property in its name, despite the fact that it held title to the property “solely as a nominee for the benefit of others.” Id. at 555. Since the statutory language was unambiguous, the court applied the statute literally.

IV

The key statutory phrase to be interpreted in this case for purposes of determining net worth and net income is “indebtedness owing directly or indirectly” to stockholders holding 10% or more of the taxpayer’s capital stock. It is the indebtedness of the taxpaying corporation that must be owed to the stockholder. The debt may be owed directly or indirectly. However, the taxpaying corporation must owe the debt to the controlling entity.

In the case of a direct debt, the obligation must be owed directly to the parent. The indebtedness may arise from a direct transaction between the two as in General Public Loan Corp. v. Director, Div. of Taxation, supra. It may also occur when the direct obligation comes into existence at some time after the original indebtedness is created. An example of this type is found in Interstate Storage and Pipeline Corp. v. Director, Div. of Taxation [1966-79 Transfer Binder] [N.J.] St.Tax Rep. (CCH) ¶ 200-708 (Div. of Tax Appeals, Dec. 2, 1976). In that case the taxpayer borrowed money from the Wisconsin Industrial Board. Some time thereafter the taxpayer became the wholly owned subsidiary of Delaware Storage and Pipeline Corporation (Delaware), which also acquired the indebtedness owing to the Wisconsin Industrial Board. This debt was held to be includible in calculating the taxpayer’s net worth. The money was directly owed by the taxpayer to its parent corporation. Interestingly, the Division of Tax Appeals noted that if Delaware had structured the transaction differently by guaranteeing payment of the taxpayer’s indebtedness rather than becoming the obligee, the net worth would not have been increased because then the debt would not be owing to the taxpayer’s parent. Id. at 10,610.

It is crucial, then, that the direct debt be owed to the parent or controlling stockholders. Thus, if the taxpayer borrows money from a third party, such as a bank, an insurance company, or the public, that indebtedness should not be added to the net worth of the taxpayer. It is not owed to the parent.

The same principle should apply when the taxpayer borrows monies from an affiliated corporation unless those monies are indirectly owed to the parent. Assume A corporation owns B and C corporations, and the subsidiaries are engaged in their respective businesses. B has generated unneeded cash from its operations or has sold some of its securities to third persons (other than to the parent) and the proceeds are available for loans. B then advances some of that money to C. C’s indebtedness is not owed to A directly or indirectly. If, however, A sold its securities and advanced funds to B, which in turn loaned dollars to C, then the indebtedness would be indirectly owed to A and under the statute should be included in the calculation of C’s net worth. There may be situations that are mixed. A may have made advances to B that had also obtained funds by borrowings from non-affiliated entities. C then borrows from B. In that event it would be presumed that C’s indebtedness was indirectly owing to A. However, such a presumption should not be conclusive. If C establishes that A is not the source of the money, then the indebtedness would not be indirectly owing to the parent and hence would not be includible in C’s net worth calculation. When it is not clear whether the indebtedness is indirectly owed to the parent, the taxpayer has the burden of demonstrating that the indebtedness is owed to third party creditors and not to the parent corporation.

The interpretation we have given to the statute accords not only with its language but also with the legislative intent to treat certain loans between affiliated corporations as a disguised contribution of shareholder equity. Initially, the state franchise tax was levied on the basis of a corporation’s capital stock. R.S. 54:13-6 (1937). The Legislature restructured this tax because of its dissatisfaction with another statutory requirement, L.1851, p. 271, that a corporation’s intangible personal property, such as stocks, bonds, and notes, should be valued for municipal tax purposes by the local assessors and at local rates. See New Jersey Commission on Taxation of Intangible Personal Property, Report 9-21 (1945). The Corporation Business Tax Act, enacted in 1945, L.1945, c. 162, replaced this revenue-raising tax scheme with a uniform statewide tax. Though denominated as a franchise act, the statute had a revenue-raising purpose as well. See N.J.S.A. 54:10A-2 (stating “such franchise tax shall be in lieu of all other State, County or local taxation upon or measured by intangible personal property”).

The Act, though amended from time to time, has remained substantially intact. The provision that required the inclusion in “net worth” of the amount of all indebtedness owing directly or indirectly to holders of 10% or more of the outstanding shares of the taxpayer’s capital stock, N.J.S.A. 54:10A-4(d), has remained unchanged for our purposes except for two modifications. In 1947 “indebtedness owing directly or indirectly” was defined to include obligations owing not only to the stockholder but to members of his immediate family. L.1947, c. 50, § 1. In 1979 financial business corporations that were funded through debt from affiliated corporations were excluded from the operation of section 54:10A-4(d). A. 1979, c. 76, § 1.

The only express indication of the legislative intent with respect to including indebtedness in a corporation’s net worth is found in the 1947 report issued before a reenactment, L.1947, c. 50, § 1, of the “net worth” definition in 1947. In that report the following comments concerning the net worth provision appear:

Corporations which are largely or entirely financed by borrowed capital hold assets and conduct business in the same manner as to those financed largely or entirely by equity capital. Deficit corporations exercise the same privilege to do business in New Jersey and they require the same public services as do corporations which have few or no debts.

The Commission finds that the Corporation Business Tax Act should be adjusted to provide a more suitable tax base for corporations holding substantial assets but reporting little or no net worth. While provisions of the act requiring adjustment of net worth to include debts owed to holders of 10 per cent or more of the capital stock provide some correction for discrepancies of this kind, they do not in every instance result in a suitable tax base for corporations operating largely upon borrowed capital. [New Jersey Commission on State Tax Policy, Second Report 101 (1947).]

Thereafter, the court observed in Werner Machine Co. v. Director, Div. of Taxation, 6 N.J.Super. 188, 193 (App.Div.1950):

It is clear that under the pertinent statute the legislative intendment was the imposition of a franchise tax upon all corporations doing business within New Jersey, exacting as a fee that which would result in a proportionately equal burden upon all corporations whether they operate on deficit financing or on an equity capital basis.

Accordingly, the legislative intent was to determine a corporation’s net worth by including its real capitalization, whether reflected by its capital stock and surplus or by debt owing to its parent. Not any and all debt was to be included, but only that furnished directly or indirectly by the parent. In such cases, the debt would conceptually and realistically be part of the corporation’s net worth.

The foregoing analysis is equally applicable to the net income provision of the statute, which disallows as a deduction from net income 90% of interest on “indebtedness owing directly or indirectly to holders of 10% or more” of the taxpayer’s outstanding capital stock. N.J.S.A. 54:10A-4(k)(2)(E). The statute contains a single definition of the phrase “indebtedness owing directly or indirectly,” N.J.S.A. 54:10A-4(e), applicable to both the net worth and net income provisions. The statutory interpretation principles and legislative history discussed with respect to net worth are similarly apropos to the net income provision.

The difficulty with the Director’s regulations is that they set up a per se rule, so that any advances made by one subsidiary to another irrespective of whether the indebtedness emanates indirectly from the parent are automatically included in the borrower’s net worth computation. To the extent that is so, the regulations are ultra vires.

We cannot uphold the Director’s regulations, N.J.A.C. 18:7-4.5(d) and -5.2(a)(7), which automatically include in a subsidiary’s net worth any advances the subsidiary has made as fellow subsidiary and exclude only 10% of the interest on such indebtedness in computing net income, regardless of whether the indebtedness emanates directly or indirectly from their common parent. Such a per se rule exceeds the express language of the statute.

It is well established that the Director’s regulatory authority cannot go beyond the Legislature’s intent as expressed in the statute. As Justice Clifford observed in Service Armament Co. v. Hyland, 70 N.J. 550, 563 (1976), “an administrative interpretation which attempts to add to a statute something which is not there can furnish no sustenance to the enactment.” Earlier, in Kingsley v. Hawthorne Fabrics, supra, 41 N.J. 521, we struck down a Director’s regulation because its interpretation of a statutory term went beyond the import of the statutory s language, and observed that “[a]n administrative agency may not under the guise of interpretation extend a statute to include persons not intended, nor may it give the statute any greater effect than its language allows.” Id. at 528. See also Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 93 (1973) (an appellate tribunal is “in no way bound by the agency’s interpretation of a statute”); 3 Sutherland, Statutory Construction § 66.04 (Sands 4th ed. 1974); cf. Salomon v. Jersey City, 12 N.J. 379, 388-89 (1953) (a municipality’s interpretation of a state taxing statute is not binding on the courts).

When we apply the principles we have enunciated to the facts of this case, we find that the plaintiff borrowed funds, not from its parent, but from an affiliated corporation, Fedders Capital. Moreover, the plaintiff formed Fedders Capital and invested its (plaintiffs) capital for that purpose. The undisputed reason that it established Fedders Capital was to enable the plaintiff to tap the Eurodollar market. As noted previously, Eurodollar transactions are designed to enable a foreign investor to avoid federal income and estate taxation on the purchase of what is in substance a security of a domestic company, such as the plaintiff, although the investor in fact acquires a security of an offshore affiliate of the domestic company, such as Fedders Capital. This foreign source of funds has dramatically increased in recent years and has become a major supplier of purchasers of debt securities of domestic corporations. Thus, in 1982 Eurodollar and other foreign currency bond markets accounted for approximately 28% or $14,600,000,000 of public debt financing by United States corporations. Securities Industry Association, The Importance of Access to Capital Markets Outside the United States sched. V (May 1983).

It is clear here that the plaintiff used its international offshore finance subsidiary, Fedders Capital, to gain the federal tax advantages afforded by the Eurodollar market. Fedders Capital made a public offering of $30,000,000 of its debentures and the entire proceeds were reloaned to the plaintiff on substantially the same terms as the public offering. This indebtedness is not owed by the plaintiff to its parent, Fedders. It is understandable that the Attorney General has not argued that Fedders’ guarantee of the indebtedness of Fedders Capital and the possible convertibility of Fedders Capital debentures into Fedders’ common stock are bases for holding that the indebtedness is indirectly owing to the parent. We do not mean to imply, however, that if the guarantee had been triggered and satisfied so that a debt was owing to Fedders, or if the debentures had been converted into Fedders’ common stock, plaintiff’s net worth should not be increased accordingly. See Interstate Storage and Pipeline Corp. v. Director, Div. of Taxation, supra (indebtedness of taxpayer originally incurred from third person subsequently was due to parent and was included in taxpayer’s net worth).

The plaintiff is entitled to the exclusion of the debts owed to its subsidiary from plaintiff's net worth and to the deduction of the entire amount of the interest paid on that indebtedness for the fiscal years ending August 31, 1972, 1973, and 1974. The judgment is reversed.

1 The Attorney General contends that the above statement is a correct interpretation of the regulation, N.J.A.C. 18:7-4.5(d), which reads as follows:

(d) In the case of a creditor, corporate or otherwise (other than an individual), including an estate, trust or other entity, indebtedness, if not includible by reason of direct ownership of taxpayer's stock by such creditor, shall be includible if both the taxpayer and the creditor are substantially owned or controlled directly or indirectly by the same interests, or where the creditor is controlled, directly or indirectly by interests, including members of the immediate family of stockholders, which in the aggregate hold ten percent or more of the taxpayer’s outstanding shares of capital stock of all classes. For the purpose of determining the degree of stock ownership of a corporate creditor, all the shares of the taxpayer's capital stock held by all corporations bearing the relationship of parent, subsidiary or affiliate of the corporate creditor shall be aggregated.

2 N.J.A.C. 18:7-5.2(a)(7) reads as follows:

(a) Add to Federal taxable income:

7. The amount deducted, in computing Federal taxable income, for interest on indebtedness (whether or not evidenced by written instrument) directly or indirectly owed to an individual stockholder or members of his immediate family who, in the aggregate, own beneficially ten per cent or more of the taxpayer's outstanding, shares of capital stock, or to a corporate stockholder, including its subsidiaries, which owns beneficially, directly or indirectly, ten per cent or more of the taxpayer’s outstanding shares of capital stock, minus [ten percent] of amount so deducted or $1,000.00, whichever is larger. Thus, if the amount of such interest is $1,000.00 or less, then none of said amount need be added back. A taxpayer is not required to add back interest paid or accrued on bonds or other evidences of indebtedness issued, with stock, pursuant to a bona fide plan of reorganization to persons who prior to such reorganization, were bona fide creditors of the taxpayer or any predecessor corporation, but were not stockholders thereof.

3 The Supreme Court has never repudiated the Gould principle, but it did not apply the principle in White v. United States, 305 U.S. 281, 59 S.Ct. 179, 83 L.Ed. 172 (1938), which involved a claim for a deduction as distinguished from a claim of the inapplicability of the statute. The Circuit Courts of Appeal have continued to adhere to the Gould principle. See United States v. Brown, 536 F. 2d 117, 122 (6th Cir.1976); B & M Co. v. United States, 452 F.2d 986, 990 (5th Cir.1971); Gellmann v. United States, 235 F.2d 87, 89-90 (8th Cir.1956); Charles Leich & Co. v. United States, 210 F.2d 901, 907 (7th Cir.1954). Mertens writes that the "courts have repeatedly held as a general rule that in cases of ambiguity doubts should be resolved in favor of the taxpayer." J. Mertens, Law of Federal Income Taxation § 3.05 (Doheny 1981) (footnotes omitted). But see Bronson v. Commissioner, 183 F.2d 529, 536 (2d Cir.1950) (by negative inference criticizing the Gould principle by noting in passing that the principle was "in vogue” in 1929 and 1930); Endler v. United States, 110 F.Supp. 945, 949 (D.N.J.1953) (the Gould principle is “no longer the law”).