Florence Cotton Mills v. Commissioner
This text of 44 B.T.A. 436 (Florence Cotton Mills v. Commissioner) is published on Counsel Stack Legal Research, covering United States Board of Tax Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[439]*439OPINION.
The issue in this proceeding is whether a contract was executed by petitioner prior to May 1,1936, which expressly dealt with the payment of dividends in compliance with the provisions of section 26 (c) (1) of the Revenue Act of 1936, set out in the margin.1
[440]*440Respondent contends that no such contract can be considered as executed by the petitioner prior to May 1, 1936, because the application for the loan specifically provided that the “contract shall become binding upon the parties * * * only when * * * the loan applied for is paid to applicant.” Such loan was not paid to petitioner until September 1936.
Petitioner, on the other hand, contends that a contract was executed by it by virtue of its signing the application which was accepted by R. F. C., subject to certain conditions, on February 19, 1936, and that the clause in the application above quoted was a condition precedent not to the existence of the contract but to the liability of the parties imder the contract.
Petitioner, in advancing this argument, stresses the following language in the application:
This application, as hereafter amended or supplemented, together with all conditions imposed by and all agreements required by or entered into with or for the benefit of R. F. C. in connection with the making of the loan hereby applied for and the note or notes of applicants evidencing such loan (all of which are incorporated herein and made a part hereof), shall constitute a contract between applicant and R. F. C. * * *.
We are inclined to the conclusion that the parties intended all of their written agreements, together with amendments and supplements, beginning with the application for the loan and ending with the actual disbursement of the loan, to constitute the contract between the parties, such contract not to come into being as such until all of the negotiations had been definitely completed by the payment of the loan. That this is a reasonable construction of the language used by the parties is demonstrated by the dealings between the parties here with the many facets of the transaction requiring extended negotiations which lasted for over a year.
However, even if we assume arguendo, as petitioner contends, that a contract existed between petitioner and R. F. C. prior to May 1, 1936, and that only the condition precedent to liability under the contract remained to be fulfilled after that date, we are, nevertheless, of the opinion that petitioner is not entitled to credit under section 26 (c) (1) of the Revenue Act of 1936, which refers to “amounts which can be distributed within the taxable year as dividends without violating a provision of a written contract executed by the corporation prior to May 1,1936.” (Emphasis supplied.) This language assumes a binding contract, the breach of which would constitute a violation. Unless a contract, binding upon both parties, existed prior to May 1,1936, the section of the act granting the credit claimed can not be considered as having been complied with, and therefore, petitioner is not entitled to credit thereunder.
Decision will be entered for the respondent.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
44 B.T.A. 436, 1941 BTA LEXIS 1332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florence-cotton-mills-v-commissioner-bta-1941.